IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No. 1232 of 2007 Braj Mohan Sah, son of Late Jamuna Sah, resident of Mohalla Ismailganj, P.S. Laheriasarai, District Darbhanga………………..Defendant-Applicant-Petitioner. Versus 1. Muzaffar Khan, son of Late Latif Khan, resident of Mohalla Dumduma, P.S. Laheriasarai, District Darbhanga. 2(i) Divendra Sharma (ii) Arvind Sharma (iii) Ajay Kumar, all are sons of Late Dr. Ram Naresh Sharma. (iv) Jyoti Kumari, W/o Dr.Sunil Kumar, D/o Ram Naresh Sharma, All are residents of Shahganj, Benta, Ayachi Nagar, Doctor’s Colony, P.S. Laheriasarai, District Darbhanga. …..…Plaintiffs-Opposite Parties-Opposite Parties. For the petitioner : Mr. Vijay Shankar Srivastava, and Pankaj Kumar Das, Advocates. For the Opp.Parties : M/s Md.Abu Haider and Jahan Ara, Advocates. ------------ 13/ 01.07.2009 Heard learned counsel for the petitioner and learned counsel for the opposite parties. This civil revision has been filed by the defendant- applicant-petitioner challenging order dated 14.05.2007 passed in Misc. Case No.04 of 2007 by which the learned Subordinate Judge- I, Darbhanga dismissed the petitioner’s miscellaneous case on the ground of delay, which was filed under the provisions of Order IX Rule 13 read with section 151 of the Code of Civil Procedure. It transpires that Title Suit No.16 of 2006 was filed by the plaintiffs-opposite parties for specific performance of contract and other ancillary reliefs but the said title suit was decreed ex-parte on 09.11.2006 due to non-appearance of the defendant-petitioner. It 2 further transpires that thereafter defendant-petitioner filed Misc. Case No.04 of 2007 under Order IX Rule 13 read with section 151 of the Code of Civil Procedure for setting aside the ex-parte decree. The said miscellaneous case has been dismissed by the learned court below by the impugned order dated 14.05.2007 holding that there was a delay of about 10 days and it cannot be condoned as no application under section 5 of the Limitation Act had been filed. Learned counsel for the petitioner files a supplementary affidavit dated 26.06.2009 stating that the aforesaid Misc. Case No.04 of 2007 was filed on 22.03.2007, whereas a limitation petition for condoning the delay in the filing of the miscellaneous case had been filed on 08.05.2007 in the learned court below, namely the learned Subordinate Judge-I, Darbhanga. A copy of the said limitation petition has also been annexed as annexure-5 to the supplementary affidavit. Order dated 08.05.2007 of the order sheet of the learned Subordinate Judge-I, Darbhanga in Misc. Case No.04 of 2007 also shows that a petition for condoning the delay and the limitation had been filed by the petitioner. However, these facts have been completely ignored by the learned court below while passing the impugned order. In the said circumstances the impugned order is hereby set aside and the learned court below is directed to consider the entire matter in detail, including the limitation petition filed by the petitioner and decide the aforesaid miscellaneous case expeditiously preferably within a period of three months from the date of 3 receipt/production of a copy of this order. With the aforesaid directions, this civil revision is disposed of. harish/ ( S.N.Hussain, J)