Judgment:
Sunil Hali, J.
1. This revision petition has been directed against the order of Ist. Additional District Judge, Bank Cases, Jammu dated 6.7.2007 whereby petitioner's application for setting aside ex parte decree has been dismissed.
2. A suit for recovery for an amount of Rs. 9,26,169.26 NP was filed before the Additional District Judge, Bank Cases, Jammu. Notices were issued to the defendants. Defendant No. 1 petitioner did not appear despite service and consequently the case was set exparte against defendant No. 1 on 14.9.1998. Defendant No. 2 refused to accept service and the case was also set exparte by this Court on 27.8.1998. Defendants No. 3 and 4 contested the suit. Trial concluded in passing of decree against defendants for an amount of Rs. 9,26,169.26 NP with future interest @ 10% with quarterly rests. Petitioner-defendant No. 1 filed an application under Order 9 Rule 13 CPC for setting aside exparte decree on 16.10.2002. In the said application the petitioner stated that there was no proper service as envisaged under law. According to the petitioner, merely because A/D covers were not received back, a presumption would be drawn that the petitioner had been served. Petitioner had no knowledge about the pendency of the suit as he was out of the country from January 1998 and returned back in Jammu and Kashmir in October 1999. It is important to mention that petitioner had not filed a separate application for seeking condonation of delay in filing application for setting aside exparte decree. It is alleged that the petitioner came to know about the passing of the decree only when warrant of attachment was issued against the guarantors on 8.10.2002.
3. The trial court after hearing the parties has dismissed the application of the petitioner on the ground there was no separate application for condonation of delay while preferring application under Order 9 Rule 13 CPC. That is how this revision petition has come before this Court.
4. I have heard learned Counsels for the parties. Perused the record. There is no dispute that no application for condonation of delay in filing the petition under Order 9 Rule 13 CPC was presented before the trial court. The trial court would entertain an application for setting aside an exparte decree if the same was moved within the period prescribed under the Limitation Act. Once the application has been preferred after expiry of limitation period necessarily it has to be accompanied by an application for condonation of delay which will be strictly in consonance with the provisions of Section 5 of Limitation Act. These are two independent proceedings. Any application which is beyond time has to be accompanied by an application for seeking condonation of delay by explaining sufficient cause in filing this application beyond the period of limitation. It is only after the condonation of delay application is decided that the court assumes the power to decide the main application i.e. for setting aside exparte decree. Trial court has rightly dismissed the application of the petitioner.
5. The next plea raised by the petitioner is that no notice was served upon him. It is admitted position of law that once registered notice is sent to the parties and if no A/D cover is received back within a period of 30 days, then it will be presumed that the notice has been duly served upon the parties. This contention of the petitioner is also not sustainable. The other ground taken by the petitioner is that he was not in India when the suit was filed. Assuming that the petitioner was not in the State when the notice was served upon him by the respondents even then he has no cause. The court served the notice on the address which was provided by the petitioner to the bank. It was duty of the petitioner to have informed the Bank about the fact that he was going out of the country. The obligation on the part of respondent-Bank was to serve notice on him on the basis of address provided by him. They could not have acquired the knowledge that the petitioner is out of the country. It is also important to mention that defendant No. 2 who happens to be the father of the petitioner refused to accept the notice. Refusal of notice by defendant No. 2 as recorded in the trial court's order clearly reveals that the petitioner was aware of the pendency of, the suit before the trial court. Petitioner cannot claim that he was not served.
6. There is no other explanation given by the petitioner in his application, as such the petition is dismissed.