Civil Revision No.4839 of 2003 Gurjant Singh and others Vs. Bhura Singh and others. Present: Mr.Ashok Singla, Advocate for the petitioners. None for the respondent. * * * Permod Kohli, J (Oral) Petitioners are legal heirs of the plaintiff-Nachhatar Singh who was defendant in the suit filed by Bura Singh and others in the Court of Civil Judge (Jr.Divn.), Barnala. An ex parte decree dated 30.5.1995 came to be passed by the trial Court. It appears that during the execution proceedings, one Gurdev Singh filed objection to the execution of the decree. The present petitioners who are the legal heirs of the deceased-defendant were never impleaded as parties during the trial. Nachhatar Singh predecessor-in-interest had died on 21.2.1994 whereas decree was passed on30.5.1995. The petitioner filed an application under Order 9 Rule 13 CPC for setting aside ex parte decree. As a matter of fact, two sets of applications were filed; one by the petitioners herein and another by Maghar Singh and others. The applicants categorically stated that they came to know about ex parte decree on 13.3.1996 in the village and hence the application was filed by them on 14.3.1996 for setting aside the decree. The trial Court after summoning the parties in the said application, framed following four issues:- “1. Whether the decree dated 30.5.95 is against law and facts and is liable to be set aside for the reasons given in the petition? OPA. 2. Whether the petition is not within time? OPA. 3. Whether the petition is not maintainable as alleged in the legal objections? OPR. 4. Relief.” While deciding Issue No.2, the trial Court held that the petitioners herein, had the knowledge of the decree on 31.1.1996 and thus their application is barred by time. However, an observation was recorded that there was no service upon the deceased-Nachhatar Singh in the suit. Civil Revision No.4839 of 2003 Knowledge of the decree is attributable to the petitioner merely on the ground that one Gurdev Singh and another Gurjant Singh filed application dated 31.1.1996 during the execution proceedings. It is, however, specifically mentioned that the said application was signed by Gurdev Singh and his brother, son of Jagan Singh. It is relevant to note here that present petitioner is Gurjant Singh son of Nachhatar Singh and not son of Jagan Singh. The trial Court even after recording a finding that there was no service upon Nachhatar Singh, dismissed the application being barred by time. The petitioner herein preferred an appeal before the Additional District Judge, Barnala. The appellate Court also concurred with the finding recorded by the trial court and dismissed the appeal vide its judgment dated 1.9.2003. This revision petition has been filed against the aforesaid orders. The only ground for attributing knowledge to the petitioners is the objections filed by Gurdev Singh during the execution proceedings. Admittedly, the petitioners were neither the applicants nor party in the said proceedings. There is nothing on record to indicate that petitioners were ever served in the application before the executing Court. It is a settled law that the relief under Order 9 Rule 13 CPC can only be declined if the applicant had the knowledge of the passing of the decree. From the reading of the order, nothing is revealed that the petitioner had any knowledge of passing of the decree. Under the circumstances, the findings recorded by the courts below that petitioner had acquired the knowledge of passing of decree on 31.1.1996 is based on surmises and conjectures. The trial Court has categorically held that Nachhatar Singh was never served in the suit. Under these circumstances, knowledge attributable without there-being any material/ evidence on record amounts to perversity. Consequently, this petition is allowed and the impugned orders are hereby set aside. The application under Order 9 Rule 13 CPC hereby allowed and the judgment dated 30.5.1995 is set aside as against the petitioners. The trial Court shall proceed in accordance with law. (Permod Kohli) Judge 04.08.2010 2 Civil Revision No.4839 of 2003 sd 3