Decided on May 10,2005

Dayashankar Gupta Appellant


SUNIL KUMAR SINHA,J. - (1.) BEING aggrieved with the order dated 12-8-2004, passed in Miscellaneous Judicial Case No. 6 of 2004 by the 4th Additional district Judge (F.T.C.), Ambikapur, the appellant/defendant No. 1 has filed this Misc. Appeal under order 43 Rule 1(d) of C.RC. as the application under order 9 Rule 13 C.P.C. filed by this appellant for setting aside the ex-parte decree has been dismissed by the said Court.
(2.) THE brief facts are that the plaintiff-bank filed a suit for recovery of Rs. 1,17,961.00 on 17-1-1994. The appellant is defendant No. 1 in the said civil suit and the respondents No.2,3 and 4 are other defendants respectively. The said suit was registered as Civil Suit No.3-B/1994. Originally one Smt. Phulmat was the defendant No.1. However, after her death, her name was deleted and the remaining defendants were renumbered as above. After receiving the notices of the court, all the defendants (1 to 5) caused their appearance through their counsel on 14-9-1994 and thereafter, written statements were filed on 11-3-1995. After framing of issues the matter was fixed for bi-party evidence on various dates but was adjourned for so many times because of the absence of witnesses of the plaintiff and ultimately, on 19-8-1998, when the matter was refixed for evidence, the defendants remained absent and the counsel appearing on behalf of the defendants "pleaded no instructions." The court on the said date proceeded exparte against the defendants, recorded exparte evidence of witnesses of the plaintiff-bank, heard the arguments and fixed the matter for judgment on 31-8-1998. The ex-parte judgment and decree was passed on 31-8-1998.
(3.) THE case of the appellant/defendant is that earlier he was having no knowledge of the aforesaid judgment and decree passed by the trial Court. However, when the execution proceedings were drawn, then he came to know about the said ex-parte decree on 03-10-2001. Thereafter, he came to the District Court on 06-10 2001, an application for obtaining certified copy of the exparte judgment and decree was filed on 08-10-2001, the copy was received on 15-12-2001 and then only, an application under Order 9 Rule 13 of C.P.C. was filed on 19-12-2001.;

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