IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2363 (M/S) of 2011 Ram Dayal …Petitioner Versus Mohan Chand Malasi & others …Respondents Hon’ble Tarun Agarwala, J. Heard Sri M.S. Tyagi, the learned counsel for the petitioner. A suit for specific performance was filed in the year 1988. The said suit was decreed on 28th June, 1995. After almost 11 years, the judgment-debtor filed an application on 19th April, 2006 under Order 9 Rule 13 C.P.C. for setting aside the exparte judgment. This application was also accompanied by an application under Section 5 of the Limitation Act for condoning the delay. The application under Section 5 of the Limitation Act was rejected by the IIIrd Additional Civil Judge (Senior Division), Dehradun, by an order dated 27th April, 2010, against which, an appeal was preferred, which was also dismissed by the appellate court by an order dated 30th September, 2011. The petitioner, being aggrieved by the aforesaid orders, has filed the present writ petition. The learned counsel for the petitioner submitted that the delay in filing the application under Order 9 Rule 13 C.P.C. was on account of wrong advice given by his counsel and accordingly, on this short ground, the petitioner should not be non-suited and an opportunity should be given to the petitioner to contest the matter on merit. In support of his submission, the learned counsel placed reliance upon a decision of the Supreme Court in Radha Krishna Rai vs. Allahabad Bank and others, (2000) 9 SCC 2 733, where the person being a victim of misrepresentation of facts by his own Advocate and was given a wrong impression that his appeal is pending, the Supreme Court held that the cause shown was sufficient to justify condoning the delay in filing the appeal. Having perused the judgment of the Supreme Court (supra) and having heard the learned counsel for the petitioner at some length, the Court finds that the petitioner is not entitled for any relief. The decision cited by the learned counsel for the petitioner is clearly distinguishable. In the present case, the suit was decreed in the year 1995. The execution proceedings started in the year 2001 and the petitioner was served with the notices. In spite of being served in 2001, the petitioner waited almost for five years to file an application in the year 2006. Such delay on the ground that the petitioner was given wrong advice by his counsel cannot be accepted. This Court does not find any cogent reasons to condone the delay. The writ petition fails and is dismissed. (Tarun Agarwala, J.) 12-12-2011 Salim/