R.L.Gupta, J. - (1.) This application has been moved on behalf of defendant No. 1 in the original suit underorder 9, Rule 13 read with Section 151 of the Code of Civil Procedure (Code for short) for setting aside an ex parte decree against it passed on 6th October. 1988. "It is alleged that the defendant/ appplicant had not been served with any summons and as such be bad no knowledge of the pendency of the suit before this Court. He bad filed a civil suit bearing No. 1966/85 in this Court which is still pending. On 5th December. 1988. an official of the plaintiff bank informed the Director of the applicant company that a decree had been passed against the applicant and in favour of the bank. This information shocked the Director of the applicant company and accordingly Mr. R.L. Kohli, Advocate, was contacted to enquire as to how a decree had been passed against, the applicant on his back and without any notice Enquiries and inspection of the causelist revealed the factum of the passing of the decree without any service on the applicant, It is then alleged that on 5th May, 1988 on Mr.I.C.Sudhir, Advocate, appeared before this Court stating that he was a counsel for the defendant applicant. But the fact remained that the defendant/applicant had not been served in the suit and had not engaged any counsel and therefore, there is no question of anybody appearing for the applicant. Further enquiries revealed that the applicant bad filed a case against M/s Bagri Steel Pvt. Ltd. which was fixed before this Court on 5th May, 1988. In that case they had instructed Mr. R.L. Kohli, Advocate, the appear. The appearance by. Mr. I.C. Sudhir, Advocate was mistaken to be an appearance in this case. Therefore, there being bonafide mistake on the part of Mr. I.C. Sudhir, Advocate, the applicant/defendant was prevented from appearing in this case and contest it. There was no service on the defendant/applicant and as such the ex parte decree should be set aside and the applicant be allowed to contest this case on merits.
(2.) The application was contested on behalf of the degree-holder. Preliminary objections are also taken to the effect that the application is barred by time and that it was an abuse.of the process of law. In fact the applicant/defendant was served for 27th August, 1987 and the counsel Mr. I.C. Sudhir also filed an application for inspection of the Court filed on 8th September, 1987: Therefore, the whole story of the mistake on the part of Mr. I.C. Sudhir was a mere concoction. Therefore, afalse affidavit has been filed alongwith this application and the 'application should be dismissed on that short ground.
(3.) On merits, it is alleged that the applicant was fully aware of the pendency of,tbe case against him as to counsel for the plaintiff after obtaining the ad-interim ex parte injunction, sent to the applicant copy of the plaint and copy of the application under Order 39 Rules 1 & 2 alongwith the affidavit through regd. A/D, in compliance with the provisions of Order 39 Rule 3. A photo copy of the A/D card recell by the counsel for the applicant is also annexued as Annexure 'A'. Apart from that, there is a report of the process server that the applicant refused, to accept service of tbe summons and, therefore, the process service affixed the same. It was denied that any bank officials informed of the passing of the passing of the degree and it was only a concocted story. In fact Mr. I C. Sudhir, Advocate appeared in Court on behalf of the applicant and sought time to file written statement on behalf of the applicant. It was incorrect that the applicant had not been served and that he had not engaged any counsel. Regarding the other suit referred by the applicant, it was stated that the plaintiff bank was not a part in that suit and/pendency of that suit against M/s Bagri Steel Pvt. Ltd. has BO relevance to this case.;