Balasubramanyan, J.@mdashEx-parte decree against defendant No. 1 was passed on 31.3.1993. Defendant No. 1 did not exercise the right that was available to him under Order IX Rule 13 of the CPC to seek the setting aside of the ex-parte decree. Defendant No. 1 died only on 28.5.1995, after the right to apply under Order IX Rule 13 of the CPC had been lost to him. Some 2212 days later, his legal representative came forward with an application under Order IX Rule 13 of the CPC along with an application for condoning the delay. The Court below dismissed both the applications. Feeling aggrieved, the legal representative of defendant No. 1 has filed this appeal.
2. According to us, the right to apply under Order IX Rule 13 of the CPC had been lost to defendant No. 1. Therefore, there is no question of his legal representative seeking to exercise the right which had already been lost to defendant No. 1 at the time of his death. Therefore, the application at the instance of the legal representative itself is not maintainable. That apart, the case of the legal representative is that defendant No. 1 was not mentally competent to protect his own interest when the Court passed the decree in the suit on 31.3.1993. Except the interested assertion in her oral evidence, the legal representative did not adduce any evidence even to create a doubt in the mind of the court that all was not well with defendant No. 1 at the plint of time when the ex-parte decree was passed. In that situation, we are satisfied that the trial court was also right in holding that there was no sufficient explanation for condoning the long delay in making the application under Order IX Rule 13 of the CPC or for setting aside the ex-parte decree. We, therefore, find no reason to interfere with the order of the court below. We dismiss the Civil Miscellaneous Appeal.
