"A" filed a suit against "B" for recovery of money basing on Pro note, "B" made appearence and filed vakalat through his counsel. "B" had not filed his Written statment within the statutory period or after court granting sufficient time to file same, but after giving sufficient opportunityies to him, "B" was set Ex-Parte by the court for non filing his W.S and for his non appearence. thereafter the case was posted for trial. After 11 months keeping quite, "B" filed application u/o 9 r/7 to set a side exparte order passed against him without filing his WS and without serving the copy of the same to the plaintiff in S.R. However the office of the concern court has not put up petition on file since the "B" not tried pursue the petition nor appeared before the court thereafter.
However thereafter the matter adjourned for three more months, and the court has recorded the evidence of plaintiff and decreed the suit on 01-02-2011 ex -parte against the "B"
After passing of decree Plaintiff had filed Execution petition for attachment of salry of "B" i.e Jdr, and attachment of salary of "B" was ordered, and attachment of salary was effected, and three months of salary of "B" was deducted and credited to the account of E.P.
While matter stood thus "B" filed application u/o 9 r/13 on 9-03-2011stating that he came to know about passing of decree on 28-02-2011, (that is to say from the date of Knowledge) and the petition well within the limitation and apart from the said petition "B" also filed the said petition in E.P proceedings u/o 21 rule 26(2) to stay all further proceedings in the E.P on similar grounds.
My question is
at this stage whenter the aforesaid two petitions filed by the "B" are Maintainable or not? whether the said petitioms are hit under sec 5 of Imdian Limitation act?
whether the petition filed U/ o 9 r/ 13 by "B" is within the period of Limitation? if yes how? If not provide any case law.
How ever the three months salary of "B" was already deducted and credited to the account of the E.P, at this stage can the same court has a power to stay all further proceedings in the said E.P?
(According to us the "B" was having knowledge of the suit from the date of filing of his vakalat, and even from the date of filing petition u/o 9 r/7 petition) viewing the said circumstances of the case whether Sec 5 of Indian Limitation act comes in to play or not?