Decided on January 16,2003



D.C.Thakur, - (1.)MR. A.K. Roy Chowdhury, the learned Advocate appears for the appellant.
MR. S.K. Mitra, the Learned Advocate along with MRs. Aloka Mitra appears for the respondent certificate holder Bank.

(2.)The appeal preferred by the certificate debtor against the impugned order made and passed on Friday, September 6, 2002 in TRP-56 of 2002, has been taken up for consideration with the Miscellaneous Application No. 41 of 1999 arising out of the judgment and order both made on May 6, 1997 passed by the learned Presiding Officer in OA No. 4 of 1994. The reason for the analogous hearing of both the appeal preferred as well as the Miscellaneous Application moved on July 13, 1999 is that since the judgment and order which were both made on May 6, 1997 by the Learned Presiding Officer in the above case preferred by the applicant Bank for the recovery of a sum of Rs. 13,71,457.54 p. against the said appellant and other, has been bad in law, the issue standing for determination is that the present recovery proceeding is being illegally conducted, because such one has been so far conducted pursuant to the impugned certificate of recovery issued.
The recovery proceeding becomes, in a word, illegal; both the appeal and miscellaneous application need to be heard together because the basis of the recovery proceeding which has been subjected to the severe challenge therein is specifically the certificate of recovery, alleged to be illegal and intended to be set aside, which is ordinarily issued by the learned Presiding Officer, in case the person or persons against whom judgment has been pronounced have failed to pay the amount ordered to be paid within the prescribed time limit.

(3.)FACTUALLY speaking, the judgment was passed on May 6, 1997. The application for recalling the order or judgment was moved on July 30, 1999. The said application for setting aside has been moved after a period of more than two years. That application has been moved by the applicant/appellant under Clause (g) of Sub-section (2) of Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which reads as follows:
"The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:

............. (g) setting aside any order of dismissal of any application for defaulter any order passed by it ex parte."

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