Decided on August 17,2006



P.K.Deb, - (1.) THIS appeal was originally filed by 3 persons but as the appellant Nos. 1 and 3 died leaving the appellant No. 2 Sri Pawan Kumar Tulsiyan as surviving only legal heir. The appeal has been prosecuted by the appellant No. 2 Sri Pawan Kumar Tulsiyan alone.
(2.) This appeal has been preferred against the order dated 9th February, 2004 passed by the learned Presiding Officer, D.R.T., Allahabad in miscellaneous appeal No. 109 of 2003, whereby and whereunder the restoration petition filed by the original appellants for setting aside the ex parte judgment dated 9th August, 2002 in T.A. No. 1261 of 2000 has been dismissed. The respondent Punjab National Bank had filed an original Suit No. 7 of 1998 against 5 persons for recovery of Rs. 35,54,409/- with future and pendente lite interest and cost and other usual reliefs. When the D.R.T. Act came into force the suit was transferred to D.R.T., Jabalpur and was renumbered as T.A. No. 952 of 1999. After the formation of D.R.T., Allahabad in the year 2000 the case was again transferred to D.R.T., Allahabad and has been renumbered as T.A. No. 1261 of 2000. The predecessor of the appellants namely Hardwar Prasad Tulsiyan was defendant No. 3. As per records, notices were sent to the defendants but except defendant Nos. 1 and 2 none appeared but defendant Nos. 1 and 2 had also not contested and then ex parte judgment was passed. According to the appellants notices were never served on the predecessor of appellants in the original case and even notices were never served on the appellants on their substitution in the original case. From the order and records of T.A. No. 1261 of 2000, it appears that as per the order dated 24th August, 2001, the paper publication was made in a Hindi Daily on 9th September, 2001. The original defendant No. 3 i.e. the predecessor of the present appellant died on 22nd June, 2001 and on the application filed by the respondent Bank the appellants were substituted in place of defendant No. 3 on 12th September, 2001.,On that date itself there was an order for issuance of notices to the substituted heirs for objection, if any, and from the noting on the right side of the order it appears that notices were issued on 28th November, 2001 but there is order on 29th November, 2001 to the effect that defendant Nos. 1 and 2 had appeared for filing reply and none of the rest defendants had appeared, although there was publication and thus the case proceeded ex parte against the other defendants. It appears that the defendant Nos. 1 and 2 had also not contested and the case was ultimately decided ex parte. According to the appellants they came to know of the ex parte judgment afterwards and then they filed the restoration petition which was objected to from the side of the respondent Bank i.e. in spite of the knowledge of proceedings the appellant has not appeared and contested the suit and stress was given on the paper publication for the purposes of service of notices on these appellants.
(3.) IN the impugned order also the learned Tribunal held that when there was paper publication and that on the basis of paper publication defendant Nos. 1 and 2 had appeared then the appellants had the knowledge about the case.;

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