Civil Revision No.2686 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2686 of 2011(O&M) Date of Decision: April 26, 2011 Tarsem Singh and another .....Petitioners v. State Bank of India .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Rajinder Goyal, Advocate for the petitioners. ..... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 9.3.2007, Annexure P4, passed by learned Additional Civil Judge, Senior Division, Patiala, judgment dated 28.2.2011, Annexure P5, passed by learned Additional District Judge, Patiala, ex parte judgment and decree dated 4.6.2002, Annexure P1, passed by learned Additional Civil Judge, Senior Division, Patiala, alongwith ex parte order dated 22.3.2001, Annexure P6 and order dated 10.5.2001, Annexure P7, passed by learned Additional Civil Judge, Senior Division, Patiala, and for allowing the application, Annexure P2. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned orders passed by learned Courts below. Facts relevant for the decision of present revision petition are that a suit for recovery of `3,31,294/- inclusive of interest upto 12.2.1999 and for future interest at the rate of 14% per annum from 13.2.1999 with half yearly rests by sale of hypothecated tractor and the agricultural land mortgaged with the respondent-plaintiff -bank was filed by respondent- plaintiff against present petitioners being real brothers. Petitioners were proceeded ex parte by learned trial Court and ex parte decree was also passed against them by learned trial Court vide judgment and decree dated Civil Revision No.2686 of 2011(O&M) -2- 4.6.2002. An application for setting aside the ex parte judgment and decree was filed by present petitioner-defendants under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure (hereinafter to be referred as `the Code') which was contested by respondent-decree holder. Learned trial Court framed the following issues on the pleadings of the parties on the said application:- “1. Whether there are sufficient grounds for setting aside ex parte decree and judgment dated 4.6.2002? OPA 2. Whether the application is within time? OPA 3. Relief. Parties were given opportunities to lead evidence. Learned trial Court dismissed the application filed by present petitioners-judgment debtors for setting aside the ex parte judgment and decree passed against them, vide impugned order dated 9.3.2010, Annexure P4, by observing as under:- “10. But, however, from the appreciation of the evidence on record, it becomes quite evident that applicants/defendants had the knowledge of the impugned decree long time before the filing instant application and the application in hand is clearly hit by limitation. Perusal of copy of order dated 4.12.2003, it becomes evident that Sh.Nirmaljit Singh Saifipur, Advocate, put in appearance on behalf of both the JDs, i.e., applicants/defendants in execution proceedings. Ex.R2 is the copy of vakalatnama furnished on behalf of both the JDs, copy of vakalatnama dated 9.8.1999 Ex.P4 in the main suit shows that Sh.N.S.Saifipur, Advocate put in appearance on behalf of applicant/defendant no.1 and the very fact that instant application has been filed jointly by both the applicants/defendants shows that they had the knowledge ever since 9.8.1999 because they are real brothers and have engaged one and the same counsel for moving instant application. Even if it is presumed that the applicants/defendants came to know of the impugned decree in execution proceedings on 6.9.2003 vide Ex.R2, even then the instant application filed on 9.10.2004 is hit by limitation Civil Revision No.2686 of 2011(O&M) -3- because as per Article 123 of the Limitation, a period of 30 days has been prescribed from the date of knowledge for filing such an application. The contention that certain blank signed proformas of the vakalatnamas were lying with the counsel Sh.N.S.Saifdipur, Advocate, or that he put in appearance without the knowledge and consent of the applicants/defendants, has not takers because no detail of other pending cases has been brought on record nor the counsel Sh.N.S.Saifdipur, Advocate, has been produced in the witness box to prove the said fact. So much so, even no proceedings were even initiated against the alleged errant counsel, which further proves the fact that no such mischief has been committed by the counsel, rather it is the applicants/defendants, who wanted to delay and prolong the execution of the impugned decree and filed the instant application for setting aside the decree at the fag end when notice for auction of the land was issued to them. There is no procedural defect in the service of the applicants/defendants in the case in which impugned judgment and decree has been passed, rather applicant/defendant no.1 was represented by a counsel, who was none else but real brother of defendant no.2 and thereafter suffered willful ex parte decree whereas both the applicants/defendants made into the Court in execution proceedings through the counsel on 4.12.2003 in the execution of impugned decree but even then no effort was made by them to get the impugned judgment and decree set aside within 30 days thereafter, rather the instant application has been filed as late as 9.10.2004 simply to delay and prolong the recovery, which is hit by limitation. Law relied upon by the learned counsel for the applicants/defendants has no application on the facts of the present case because each case is based upon its peculiar facts and it was required of the applicants/defendants to bring their case within the fore- corner of the authorities relied upon by them, which they miserably failed to do. As such, I hold that there are no Civil Revision No.2686 of 2011(O&M) -4- sufficient grounds for setting aside the impugned judgment and decree and the instant application is also not within limitation and I accordingly adjudge findings on both the issues against the applicants/defendants. Petitioners filed appeal against the said order before learned Additional District Judge, Patiala. However, the same was also dismissed vide impugned order dated 28.2.2011, Annexure P5. As is clear from the aforementioned orders, passed by learned Courts below, even in the execution, a counsel, namely, Sh.Nirmaljit Singh Safdipur appeared on behalf of both the petitioners and filed vakalatnama, which is dated 4.12.2003. Hence, at least passing of decree came to the knowledge of both the petitioners when the counsel appeared on their behalf before the Executing Court on 4.12.2003. They could move an application for setting aside ex parte judgment and decree within prescribed period of limitation of 30 days, as per Article 123 of the Limitation Act, however, the application was filed much later, i.e., on 9.10.2004. Hence, it was rightly observed by learned trial Court that the application was not filed within limitation. The present application has also been filed by both the brothers for setting aside ex parte judgment and decree passed by learned trial Court. Even the Lawyer appeared in the Execution proceedings on behalf of the petitioners is the same Lawyer, who appeared on behalf of one of them in the trial Court. He filed vakalatnama on behalf of one of the petitioners on 9.8.1999 and, thereafter, he stopped appearing. He again appeared on behalf of both the petitioners before learned Executing Court. Hence, in view of these facts, learned trial Court has rightly observed that petitioners were in the knowledge of pendency of the present suit since the very beginning and the present application has also not been filed within prescribed period of limitation. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Courts below in passing the impugned orders or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 Civil Revision No.2686 of 2011(O&M) -5- that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 26.4.2011 (Ram Chand Gupta) meenu Judge