IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : Sodhey Khan Vs. Sed Khan & Others (S.B. Civil Misc. Appeal No.1169/2010) DATE OF JUDGMENT : November 29, 2010 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Sajjan Singh/Mr. J.K. Bhaiya for the appellant. BY THE COURT : In this miscellaneous appeal filed under Order 43 Rule 1, C.P.C., the appellant-defendant is challenging order dated 20.10.2010 passed by Addl. District Judge No.1, Hanumangarh in Civil Misc. Case No.1/03, by which, application filed by the appellant under Order 9 Rule 13, C.P.C. along with an application under Section 5, Limitation Act was dismissed refusing the appellant-defendant the prayer made for setting aside the ex parte decree dated 26.07.2000 passed in Civil Suit No.35/1996 Sed Khan Vs. Saudhey Khan & Others. Learned counsel for the appellant submits that though notices of the aforesaid suit were received but, after receiving the notices, he went to one (Aratia) Sushil 2 Kumar Hisaria and showed those notices to him and he said that he would engage lawyer for him and asked him to put his signature on papers. Upon this assurance, after handing over the papers to Sushil Kumar Hisaria he came back to his village. Later on, when notice for execution was received on 24.10.2002, then, again he met Sushil Kumar Hisaria and apprised him of the fact that now execution proceedings has been initiated. As per contention of the appellant, upon above information, he and Sushil Kumar Hisaria made inquiry from the Court, then, it was revealed that the suit was decreed ex parte vide judgment dated 26.07.2000 and for execution of the ex parte decree the execution proceedings was initiated, in which, notices were issued. Learned counsel for the appellant submits that an application under Order 9 Rule 13, C.P.C. along with application for condonation of delay under Section 5, Limitation Act was filed for setting aside the ex parte decree dated 26.07.2000. Learned counsel for the appellant further prayed that above facts were specifically brought to the notice of the learned trial Court but, trial Court while observing that all the contentions are false with regard to engaging lawyer because, in this matter, facts on record are totally contrary to each other inasmuch as 3 counsel was engaged by the defendant-applicant and Advocates Brij Narayan and Anirudh attended the Court for two years and, later on, they pleaded no instruction, therefore, contention of the appellant-defendant-applicant that he did not engage any lawyer is totally false and conduct of the applicant disentitles him to get any relief either for condonation of delay or with regard to setting aside the ex parte decree. I have considered the submissions of learned counsel for the appellant and, so also, perused the order impugned. Upon perusal of the impugned order it is revealed that clear finding is given by the learned trial Court that application was filed under Section 5, Limitation Act along with application moved under Order 9 Rule 13, C.P.C. pleading totally false facts and contrary to record. In the application, it is submitted by the appellant that he never engaged any lawyer and his “aratia” Sushil Kumar Hisaria engaged lawyer and he did not know who was counsel but, in fact, power was filed by Advocates Brij Narayan and Anirudh Kumar Hisaria, upon which, thumb impression of appellant is borne. Those lawyers appeared in the Court on behalf of the appellant for two years but the appellant- defendant-applicant made false assertion in the application that he never engaged any lawyer. 4 In my opinion, learned trial Court has rightly arrived at the finding that conduct of the appellant disentitles him to get any relief because totally false averments were made in the application for condonation of delay and setting aside the ex parte decree. Moreover, the suit was filed in the year 1996, ex parte decree was passed in the year 2000 and application under Order 9 Rule 13, C.P.C. was filed in the year 2002 while narrating false facts. In this view of the matter, no interference is required in the impugned order. Hence, this appeal is hereby dismissed. (Gopal Krishan Vyas) J.