Decided on October 13,2004



Pratibha Upasani, - (1.) THIS Miscellaneous Appeal is filed by the appellants/Original defendants No. 1 to 4 being aggrieved by the Order dated 31.8.2004 passed by the learned PO of DRT, Hyderabad, in IA-892/2004 in OA-205/2002. By the impugned Order the learned PO rejected the application made by the appellants/defendants for setting aside the Judgment and Order passed by him on 17.2.2004 holding that such an application was not maintainable.
(2.) I have heard Mr. K.A. Ramakrishnan, Advocate for the appellants and Mr. A.P.S. Kasturi Rangan, Advocate for the 1st respondent Bank. I have also gone though the proceedings, including the original Judgment and Order dated 17.2.2004, application IA-892/2004 made by the appellant No. 3, so also the impugned Order on the said Application/Affidavit passed on 13.8.2004, and in my view, the learned PO has correctly passed the Order. Proceedings reveal that the Bank had filed Original Application being OA No. 205/ 2002 against five defendants for recovery of a sum of Rs. 1,44,88,522.74p. from the respective defendants as mentioned in the plaint with cost and interest. All the defendants were served but they did not choose to file their written statement. They were, therefore, set ex pane on 4.10.2002. Subsequently, however, the said Order was set aside against defendant Nos. 1, 2, 3 and 4. Thereafter, a common written statement come to be filed by defendant Nos. 1 to 4. Defendant No. 5 did not file any written statement. The OA, however, was not making any progress because though the Bank had filed its claim affidavit the defendants were dilly-dallying in filing their claim affidavit. Proceedings reveal that number of opportunities were given to the defendants to file their claim affidavit but they did not avail of those opportunities and failed to file their claim affidavit. The learned PO was, thereafter, constrained to proceed with the hearing of the OA in accordance with law and ultimately decided the same on merits on 17.2.2004 after considering the material which was placed before him.
(3.) THEREAFTER, application came to be made by only defendant No.3 Mr. Mohd. Ahmed Ansari for setting aside the said judgment and decree. His contention was that the said decree was an ex pane decree and, therefore, apparently the application was made under Order 9 Rule 13 of C.P.C. to set aside that ex pane Order. It was admitted in the said Affidavit that the matter was posted on 2nd January, 2004 for defendant's evidence. It is further stated by him that on 2.1.2004, Jr. Counsel represented the matter that defendant Nos. 3 and 4 were out of station at Delhi for prosecuting the case before the Hon'ble Supreme Court. Accordingly, the matter was then adjourned to 12.1.2004. It is further the contention of defendant No. 3 that while noting the date of hearing as 12.1.2004, the Advocate wrongly noted the date as 12.3.2004 and that date was intimated to defendant No. 3. It is further submitted that on 12.3.2004, when he along with his Counsel came to the Court for seeking time to take further steps in the matter, they came to know that their matter was already decreed. On this ground, defendant No. 3 prayed for setting aside the said decree.;

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