HIGH COURTOF CHHATTISGARH AT BILASPUR v. Deendayal Chandrakar

^Singie Bench: Hon'ble Mr. N.K. Aearwal, J.) Present : Shri BP Singh, Advocate for the appellants. Shri SP Sahu, Advocate for the respondent No. 1. Shri Sanjeev Agrawal, Panel Lawyer for the State. \ ORAL ORDER (Passedon 26.11.2012)

'Instaht appeaS is directed against the order dated 15.11.2011, passed by Additional District Judge, Balod, Distt. Durg, in MJC Case No. 5 of 2008, whereby the appellant's application filed under Order 9 Rule 13 of CPC for setting aside ex-parte decree has been dismisse'3. ^

Brief facts necessary for disposal of this appeal are that : respondent No. 1/Deendayal filed a suit for specific performance of contract and, in fhe alternative, for refund of consideration against the respondent No. 2 as well as appellants. On 05.07.2006, appellants were proceeded ex-parte according to endorsemefit of postman they refased to accept the notice, and thereafter the trial court proceeded ex-parte against the appellants as well respondent No. 2 and passed ex-parte deoree on

19.09.2006 granting decree ofrefiind ofconsideration.

In the year 2008 i.e. after a period of two years, the appellants herein filed an application under Order 9 Rule 13 for setting aside ex-parte decree inter alia on the ground that they have never refased summons of notice and endorsement of Postman is incorrect. To substantiate their contentions, the appellants have examined the Postman.

The trial court, considenng the statement of Postman, dismissed the application filed by the appellants. Hence this appeal.

I have heard the counsel appearing for the parties and pemsed the order impugned including records ofthe cases. -6. Indisputebly, to substantiate theircontentions, the appellants have not ask a single question to the Postman in order to establish tiie fact that they have never refased the service of summons and endorsement of Postman is incorrect. ./^ Bncss. -i.^' ^^

In view of above, since the appellants have utteriy failed to substantiate their contention raised in the application which have been filed after two years of passing of ex-parte decree, in my opinion, the trial court has not committed any illegality in dismissing the appellant's application filed under Order 9 Rule 13 of CPC, warranfing interference of this court in miscellaneous appeal.

For the reasons mentioned hereinabove, the appeal fails and is

1. No order as to costs. Sd/- N.K. Agarwal Sahu .^