Neutral Citation No. - 2025:AHC:142314 Court No. - 9 Case :- MATTERS UNDER ARTICLE 227 No. - 2660 of 2022 Petitioner :- M/S Cawnpore Mill Store And Engineering Corporation Respondent :- Indian Institute Of Technology, Kalyanpur, Kanpur Nagar Counsel for Petitioner :- Akanksha Mishra,Kshitij Shailendra (Elevated) Counsel for Respondent :- Rohan Gupta Hon'ble Manish Kumar Nigam,J. 1. Heard Ms. Akanksha Mishra, learned counsel for the petitioners and Ms. Vartika Srivastava, Advocate holding brief of Sri Rohan Gupta, learned counsel for the respondent. 2. This petition has been filed challenging the order dated 27.1.2018 passed by the 2nd Addl. Civil Judge (S.D.), Kanpur Nagar rejecting an application filed by the defendant under Order IX Rule 13 C.P.C. in Suit No.1312 of 1987. Against the order dated 27.1.2018, the defendant-petitioner filed an appeal being Appeal No.14 of 2018 and the same has also been dismissed. 3. Contention of learned counsel for the petitioner is that the courts below have erroneously rejected the application filed by the petitioner under Order IX Rule 13 which was well within time. It has also been submitted by learned counsel for the petitioner that the courts below have not considered the explanation submitted by the petitioner for recalling the ex- parte judgment and decree passed against the petitioner. 4. Per contra, Ms. Vartika Srivastava, learned counsel appearing for the respondent submitted that the suit was filed in the year 1987 which was decreed ex-parte by the judgment and decree dated 26.8.1988. The said decree was recalled on an application moved by the defendant-petitioner by the order dated 28.2.1992. After the suit was restored on 28.2.1992, the matter again proceeded ex-parte against the defendant-petitioner by order dated 26.8.1993 and the petitioner never appeared before the court below till 29.11.1996 when the suit was decreed ex- parte. It has also been submitted that even this restoration application was dismissed in default, but was ultimately restored by the revisional court. It has been further submitted by learned counsel for the respondent that from perusal of the application filed under Order IX Rule 13, there is no explanation for absence of the petitioner from the proceedings. The petitioner has knowledge of the proceedings as he has already moved earlier an application under Order IX Rule 13 which was allowed and the suit was restored, thereafter, the suit was directed to proceed ex-parte by the order dated 26.7.1993 and ultimately it was decreed ex-parte on 24.11.1996. 5. I have considered the rival submissions of the parties and perused the record. 6. A finding of fact has been recorded by the trial court that from 26.8.1993 to 29.11.1996, the defendant-petitioner was continuously absent and has never participated in the proceedings. Further a finding has been recorded by the trial court that only explanation submitted by the petitioner was with regard to the date of knowledge of the ex-parte decree December, 1996. This findings of fact recorded by the trial court has been affirmed by the appellate court. 6. In my view, no illegality has been committed by the courts below in rejecting the application filed by the defendant- petitioner under Order IX Rule 13. 7. Accordingly, the writ petition is dismissed. 8. At this stage, learned counsel for the petitioner tried to assail the ex-parte decree on the ground that the said decree could not have been passed in the matter, in which, it has been passed. Since, the validity of the decree is not challenged before this Court as well as in proceedings under Order IX Rule 13, the court cannot go into the question of validity of the ex-parte decree, therefore, no such argument can be considered. At the best, these arguments may be available to the petitioner, in case, an appeal is filed against the ex-parte decree, if so, advised. Order Date :- 20.8.2025 S. Singh (Manish Kumar Nigam, J.) Digitally signed by :- SAVITA SINGH High Court of Judicature at Allahabad