M.P. Mehrotra, J. - (1.) THIS petition is directed against the appellate Court's order dated 28th July, 1982, which is Annexure II to the petition.
(2.) THE facts, in brief, are these. The Original Suit No. 271 of 1979 was filed by Sita Ram, the Petitioner before me. The Defendants in the suit, inter alia, were the Union of India and Smt. Maya Devi. The reliefs sought in the plaint were as follows: A. That a decree be passed in favour of the Plaintiff and against the Defendants, that the order of payment of the face value of Rs. 1000/ - per each of the National Savings Certificates No. 7NS/GO 790721, No. 7NS/GO 790722, No. 7NS/GO/790723 and No. 7NS/GO/790724 and interest thereon, if any by the Defendant Nos. 1 and 2 in favour of the Defendant No. 3 on 18 -3 -74 through the post office Nawabganj, Kanpur is illegal, void ab initio, without jurisdiction and confers no right, title or interest on the Defendant No. 3 to collect the amounts of the said certificates and in consequence thereof a mandatory injunction be issued commanding the Defendants to pay the face value on the said certificates together with up -to -date interest thereon at the prescribed rate 7 -1/4 % to the Plaintiff. B. That cost of the suit be paid to the Plaintiff. C. Any other reliefs which this Court may deem just and proper in the circumstances of the case be also granted to the Plaintiff. It will be seen that the short controversy was whether the payment of certain amount in respect of certain National Saving Certificates made by the Union of India to Smt. Maya Devi was valid or not, as the Plaintiff Sita Ram questioned the validity of such payment. This suit was decreed against the Defendants on 9 -9 -1981. A certified copy of the trial Court's judgment has been filed by the Petitioner in compliance with the Court's order dated 16th December, 1982. The Petitioner has also filed a certified copy of the trial Court's decree passed in the said suit. The said lady Smt. Maya Devi, who was Defendant No. 3 in the said suit and who is Respondent No. 2 in the present writ petition, moved an application under Order 9 Rule 13 Code of Civil Procedure praying that the said decree be set aside against her as it was passed ex -parte against her. Her contention was that her counsel Sri. S.L. Goyal did not appear on the date of the final hearing of the suit and she herself was also not present on the said date. Therefore, the decree was ex -parte so far as she was concerned. It seems that the suit had been earlier dismissed in default on 23rd September 1980 but had been restored again on 29th November, 1980. Thereafter, the counsel of the parties were informed of the said restoration and Smt. Maya Devi's counsel Sri. S.L. Goyal made an endorsement on the order -sheet on 17th December, 1980, that he ceased to be a counsel in the suit. It seems that due to this endorsement, the said counsel did not appear in the suit thereafter when the final hearing took place and the suit was decreed against all the Defendants.
(3.) THE aforesaid application moved by Smt. Maya Devi under Order 9 Rule 13 Code of Civil Procedure was rejected by the trial Court by its order dated 19 -12 -1981, a true copy of which is Annexure -I to the petition. Smt. Maya Devi went up in appeal against the said order and the same was allowed by the appellate Court by its impugned judgment which is Annexure -II to the petition. The appellate Court held as under: As the Defendant Appellant Smt. Maya Devi was never informed and she was not aware about the date for final hearing. I find that it is a fit case in which an ex -parte decree can be set aside against the Defendant Appellant on payment of costs.;