- (1.) D. K. Seth, J. Suit No. 69 of 1989 was decreed ex pane on 8-2-1990. On 12-10-1995 an application under Order IX, Rule 13 was filed by the applicant for set ting aside ex pane decree. By order dated 4-12-1999 the learned Additional Civil Judge, '1st Court, Senior Division, Dehradun passed in Misc. Case No. 80 of 1995, allowed the said application under Order IX, Rule 13 of the Code of Civil Procedure hereinafter referred to as the Code and set aside the exparte decree dated 8-2-1990 on condition of depositing a sum of Rs. 2 lacs out of the decretal dues. This order has since been challenged by Mr. Ravi Kiran Jain, Senior advocate assisted by Mr. Push kar Mehrotra.
(2.) MR. Ravi Kiran Jain learned Coun sel has contended that unless the defen dant is at fault, there cannot be a direction for depositing of decretal amount nor any cost is imposed on them. In the present case the Court has come to a finding that summons were not served on the defen dant-applicant nor they had any knowledge of the suit. Therefore, the defendant was found to be not at fault for the ex pane decree. He further contends that there is nothing to indicate that the defendant-applicant had adopted any dilly-dally tactics or had delayed the proceedings in any manner. In support of his contention he had relied upon the decision in the case of Raj Kumar Soni v. M/s. Mohan Meakin Breweries Ltd. , AIR 1979 Alld 370, particularly of paragraph 7 wherein it has been held that unless the party is at fault the Court is not supposed to order for payment of money or furnish ing of security while setting aside the ex aprte decree though however the Court may secure the decree by some other means on certain conditions. He had also relied upon the decision in the case of State of Orissa v. Sriram Barai (Simaram Barai), JT 1996 (6) SC 395:1996 SCFBRC 490. On the other hand, Mr. K. L. Grover, learned Counsel appearing for the respon dent Bank has raised a preliminary objection that all the parties of the proceedings are not made parties and as such this application cannot be maintained. Mr. Jain answered the preliminary objection by seeking leave to incorporate the names of the defendants who in fact has no interest adverse to that of the applicant as opposite parties in the present applica tion and prays that since they would not be prejudiced, therefore, service upon them may also be dispensed with.
(3.) IN the facts and circumstances of the case since the matter was also argued on merit by both the learned Counsel situation demands, in the interest of jus tice that the prayer of Mr. Jain be allowed and leave be granted. He may incorporate the names of other defendants in the revision application in course of today. Since the other defendants cannot have any interest adverse to that of the applicant, if the exparte decree is set aside, therefore, in order to expedite the hearing this Court feels that the service on the said defendants be dispensed with and the mat ter be taken up and disposed of today.;