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NPKailaasam (ADVOCATE & Management Consultant)     17 October 2013

About setaside petition

Sir,     In a civil case regarding partition and possession D6 was absent in first hearing at 17.09.2013, she called absent and ex parte,now to file set aside petition the time limit is 30 days,then the civil court holiday from 13.10.2013 to 20.10.2013 whether we file the O9, R7 Of CPC petition at 21.10.2013 WITHOUT LIMITATION ACT SEC 5 petition,whether the set aside petition can be filed within or on next hearing date without sec 5 petition,can you explain briefly.... any citations  



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 4 Replies

T. Kalaiselvan, Advocate (Advocate)     17 October 2013

If the Ex-parte order is against only D6 and all other Defendants are contesting the case and if the case has not yet been disposed, there is no need to file an application u/s 5 of Limitation act to condone delay in filing the petition under Order 9 Rule 7, you can straightaway proceed with the set aside petition alone.


(Guest)

Apply to the court to set aside exparte . Kindly satisfy the court by placing the true facts on record. In a setting aside case you have to demonstrate beyond reasonable doubt that (i) summons was not duly served or (ii) you were prevented by sufficient cause from appearing when the suit was called on for hearing.

T. Kalaiselvan, Advocate (Advocate)     17 October 2013

Set aside petition filed within 30 days need not be accompanied with condone delay petition.  In your case, the 30 days period is ending on 17.10.2013, but since the courts are on vacation till 20.10.2013, the period of vacation i.e., 13.10.2013 to 20.10.2013 will not be for within 30 days, and this period of seven days will be excluded from the grace period of 30 days so you can calculate the same from 17.09.2013 to 12.10.2013 and from 21.10.2013 till the date where the 30th day is concluded. 

cyberlawyer (barrister)     23 October 2013

@ kalaiselvan - 

Sir if the exparte order is only against one defendant and there are other contesting defendants,

is it not mandatory to file sec. 5 application , if set aside application is filed after the delay period ?. 


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