Limitation for o 9 r 13 for filing application for delay condone to set aside ex-parte decree
sk mohataji
(Querist) 12 July 2015
This query is : Resolved
ex-parte decree passed in my favour in a money summary suit. Even u/s 138 of NI Act proceeding continues against same opponent. After 20 months of Ex-parte decree, an application is filed by the deft.u/o 9 R 13 for delay condone and is allowed by the court. My advocate suggests to move high court stating application could be filed only upto 30 days of the decree. High Court expenses are high.
should I move high court or accept delay condone and let the matter move. kindly guide.
dr g balakrishnan
(Expert) 12 July 2015
if decree is exparte without notice to respondent can be set aside;
here in 138 matter, ct allowed u/o.9R.13 for delay condonation, you can move in the same court with in reasonable time but yr case is 20 months delay...so let the matter move normally, no purpose could be served if you move high ct except unnecessary expense to you .
so wait as you failed the reasonable time limit, now where from you get 30 days when 20 months are already over from the date of decree.
sk mohataji
(Querist) 12 July 2015
sir, you got it wrong. The deft.moved an application for delay condone of 20 months under Order 9 rule 13 to condone the delay, saying ex-parte decree is obtained by Fraud. He did not explain how Fraud is played by me - the pltf. But got favourable order and delay condoned. Do I move high court or accept the condonation and wait for the matter to be listed with new number and argue the matter. My adv.is of opinion to move high court. i am confused. kindly assist.
Rajendra K Goyal
(Expert) 14 July 2015
Move for appeal as per the advise of your lawyer.
sk mohataji
(Querist) 14 July 2015
thanks sir for your kind suggestion.
But sir, suppose the delay as allowed is accepted, than a new number for the CMA will be put and we also have a good chance of argue there for the matter. Deft's main say is DECREE obtained by FRAUD. ust saying fraud, they could get delay condoned, but without any basis, when they cant prove FRAUD, DECREE may be allowed to proceed further and recover the decreetal dues.
This is only to save from HIGH COURT expenses. If you find it reasonable, kindly intimate else I proceed to HIGH COURT as per your kind suggestion.
thanks in advance.
sir, another point which the hon'ble judge remarked before condoning the delay was :
Decree can be challenged within 3 years u/O9R13 and not within 30 days as argued by my advocate. So there is no delay at all ?? Delay condone though applied, was not required, hence cant stop but have to agree for delay condonation and pass the order.
