Decided on December 20,2007



M.C. Jain, J. (Chairperson) - (1.) THIS is an appeal by the Bank against the order dated 17.11.2003 passed by the Tribunal below, allowing the application of the defendant No. 3 (respondent No. 1 herein) for setting aside the ex parte judgment and order dated 26.2.1996 passed in Civil Suit No. 30/1996 - Central Bank of India v. Ahuja Industries and Ors., by which the Bank's suit for the recovery of Rs. 8 lakh and odd had been decreed against the defendants/respondents herein with pendente lite and future interest.
(2.) THE relevant facts may be taken note of: The appellant -Bank had filed a suit against the respondents 2 and 3 (defendants 1 and 2) for the recovery of Rs. 8 lakh and odd along with pendente lite and future interest on 13.6.1992. Certain land had allegedly been mortgaged to secure the repayment of the loan obtained by respondents 2 and 3/defendants 1 and 2. In the suit, the respondent No. 1 herein -Mr. Avtar Singh was also impleaded as defendant No. 3 as being the purchaser of the part of the property in question from the respondent No. 3/defendant No. 2 during the existence of the mortgage. Notices were sent to the defendants through Registered cover. They were received back unserved. The defendants were ordered to be served by substituted service through publication in the newspaper vide order dated 6.9.1993. Despite the service through such publication, the defendants did not appear. They were ordered to be proceeded ex parte vide order dated 21.11.1994 and ultimately the suit was decreed on 26.2.1996. The appellant -Bank then made O.A. No. 661/2000 before the DRT, Jaipur for issuance of recovery certificate in its favour on the basis of decree dated 26.2.1996 passed by the Civil Court. The notices were issued to the defendants through Registered Post for appearance on 25.4.2000. On 3.10.2000 the case was transferred to DRT, Chandigarh. No fresh notice was issued to the defendants. The Bank filed an affidavit that registered notices were issued on 18.3.2000 to the defendants for appearance on 25.4.2000. They were presumed to be served and were proceeded ex parte. Ultimately, after hearing ex parte arguments from the side of the Bank, the ex parte order and recovery certificate came to be issued on 17.8.2001. Proclamation for the sale of the mortgaged property was pasted at the spot on 28.10.2002. The case of the respondent No. 1/defendant No. 3 was that he came to know about the recovery proceedings for the first time when the sale proclamation was pasted at the spot and that after making inquiry he obtained certified copy of the orders and the recovery certificate on 7.11.2002 and also obtained copy of the necessary record of the Civil Court on 9.11.2002. Then the application for setting aside the ex parte decree was made under Order 9 Rule 13, CPC.
(3.) THE gist of the impugned order is that the restoration application of respondent No. 1/defendant No. 3 has been allowed and the ex parte judgment dated 26.2.1996 passed against him has been ordered to be set aside subject to payment of Rs. 4,000/ - as costs to the Bank with the further stipulation of filing the written statement within 30 days.;

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