IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.138 of 2008 Srimati Balkesia Devi wife of Sri Rajendra Rai, residentof Village –Bahrampur, PO Mohanpur, PS and Circle Raghopur, District Vaishali .....Plaintiff –Opposite Party 1st set -Petitioner Versus 1. Sri Ram Chandra Rai son of Late Ram Kishun Rai 2. Most. Rampatia Devi wife of late Ram Jatan Rai 3. Sri Sajeeban Rai son of late Ram Jatan Rai 4. Sri Ram Ashlok Rai son of late Ram Jatan Rai 5. Sri Lal Babu Rai son of late Ram Jatan Rai 6. Sri Shivnath Rai son of late Ram Prasad Rai 7. Name not known son of late Ram Prasad Rai 8. Fulwa Devi wife of Rajendra Rai 9. Sonma Devi wife of Rajendra Rai 10. Lalpari Devi wife of Vakil Rai All the three no. 8, 9 and 10 daughters of late Ram Jatan Rai All residents of Vilalge Bahrampur PO Mohanpur, PS and Circle Raghopur, District Vaishali ........ Defendants – Opp. Parties 2nd set – Opp.Parties ----------- 04- 21/10/2011 Heard Mr. Anish Chandra Sinha for the petitioner, and Mr. Surendra Kishore Thakur for the opposite parties. The plaintiff is the petitioner in this application under Section 115 of the Code of Civil Procedure, and challenges the validity of the order dated 6.10.2007, passed by the learned Sub Judge 1st court, Hajipur at Vaishali, in Misc. Case no.3 of 2005, whereby the application filed by the defendants under the provisions of Order 9, Rule 13 of the Code has been allowed, and the ex-parte judgment and decree dated 22.4.2004 in Title Suit no.60/99 has been recalled, and the suit has been directed to be taken up for disposal afresh. 2 2. Learned counsel for the plaintiff (the petitioner) submits that the judgment and decree in the suit was dated 22.4.2004, and Misc.Case no. 3 of 2005 was filed on 26.4.2005. The same was, therefore, hit by delay. The plea of limitation raised by the plaintiff in the misc. case was not considered at all, and the matter has been disposed of without any application for condonation of the delay. 3. Learned counsel for the defendants (opposite parties) submits that they have clearly stated in their application that they have come to know of the judgment and decree of the suit on 20.4.2005. Therefore, the period of limitation shall commence from the date of knowledge and the suit was indeed filed on 26.4.2005, within the period of limitation. 4. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It appears from the application initiating Misc.Case no.3 of 2005 that the defendants had indeed stated in their application that they had come to know of the judgment on 20.4.2005. This may be a ground for condonation of the delay in filing the misc. case. It does not absolve the applicant from filing an application for condonation of the 3 delay in filing the misc. case. The learned trial court has obviously erred in ignoring the issue of limitation which was clearly raised in the written statement filed by the plaintiff in the misc. case. However, in exercise of discretionary revisional jurisdiction, I am not inclined to set aside the impugned order on the ground of delay in filing the same. It is a suit of 1999, the impugned order itself is of 6.10.2007, and it would not be in the interest of justice to set aside the impugned order on that ground. The misc. case was actively contested by both sides leading to the impugned order. We do not wish to interfere with the impugned order. 5. This civil revision application is dismissed. mrl ( S K Katriar, J. )