IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1891 of 2008 KASHI NATH DUBEY Versus TULSI PRASAD YADAV ----------- 4 18/12/2008 Heard counsel for the petitioner. In the opinion of this Court a reasoned order running into seven pages allowing prayer of the defendant-opposite party for setting aside the exparte decree in exercise its power under Order IX, rule 13 of the Code of Civil Procedure, does not require any interference by this Court specially when the court below has considered each and every aspect. The submission of learned counsel for the petitioner that the application filed by the opposite party was itself barred by limitation, has to be only noticed for its being rejected. Such application was filed along with the application seeking condonation of delay in terms of section 5 of the Limitation Act and it was pleaded therein that the application was filed within thirty days of acquiring knowledge of the ex-parte decree. There is nothing on the records to show, at least in this Civil Revision 2 Application either by enclosing limitation petition or rejoinder thereto that the plea raised by the defendant-opposite party in the application seeking condonation of delay was false. As per the impugned order the defendant-opposite party had appeared in the Court on 19.12.2006 and therefore his having knowledge at least from that date, has been explained by the court below that there was nothing to show that as a matter of fact the opposite party had also knowledge of the ex-parte decree prior to filing of his application on 3.7.2007. For this purpose the court below has relied on evidence of the petitioner himself, who could not establish that the opposite party had knowledge of the ex-parte decree on any date prior to 3.7.2006. The petitioner in course of his cross- examination had also miserably failed to give any detail of service of notice on the opposite party and thus could not substantiate the main plea to be adjudicated in the cases of Order IX, rule 13 of the Code of Civil Procedure. 3 That being so, this Court would not find any merit in the submission of counsel for the petitioner specially when all that has been done by the impugned order is that an exparte decree has been set aside, for now setting us the stage for contesting the suit on merits. That being so, this application being wholly misconceived is hereby dismissed. (Mihir Kumar Jha, J.) Abhay Kumar