K.J.Sengupta, J. - (1.) These applications are taken up for hearing. I put it on record that ordinarily I would not have taken up for hearing of the application for setting aside ex parte decree and I would have sent it to the regular suit Court which had passed the decree though I do have the jurisdiction to take up the matter. Learned Judge who had passed the decree has retired. I have taken up this application because of the fact that the execution application has been taken up for enforcement of the decree which is sought to be impugned by this application by the defendant. From the records I find that summons was duly served and thereafter the suit was placed in the list as undefended suit and the suit was heard for several days and decree was passed on March 12, 2004 and thereafter it was modified on April 06, 2004. The instant application for recalling of the decree was taken out on May 14, 2004. If the date of the passing of the decree is to be reckoned then this application is out of time by 64 days roughly and if the date of modification of the decree which is sought to be executed here is taken into consideration then the delay will be lesser by at least one month. Any way having regard to the days I think delay is not an extraordinary. It appears further from the records that the bank/defendant woke up from slumber after the decree was passed and explanation have been given in the petition is that the laches and negligence on the part of the officials of the bank.
(2.) Apartment from the aforesaid fact it is highlighted by Mr. Das, learned senior Advocate, that on that date the decree ought not to have been passed in view of the provision of Order 9 Rule 6 read with Rule 7 and Rule 13 of the Code of Civil Procedure. He further contends that on that date the Court should have taken a decision after having been satisfied that writ having been served and the suit should have been heard ex parte on some other day and not the day itself when the suit was called for hearing. This will appear from the conjoint reading of the aforesaid three rules. In support of his submission Mr. Das in his usual style has brought fairly recent Supreme Court decision reported in AIR 2002 SC 2370. He has relied on paragraph 12 of the aforesaid Judgment. The paragraph 12 of the said Judgment obviously supports his contention.
(3.) Mr. Tilok Bose has submitted on the other hand on this legal proposition by drawing my attention to the provision of Rule 24 of the Chapter 10 of the Original Side Rules of this Court. I have checked up all these provisions and it is rightly submitted by Mr. Das that there has been no conflict between the aforesaid provisions. Therefore, there cannot be any difficulties for applicability of both the provisions. I appropriately set out provisions of Order IX Rule 6 and also Rule 7 of the Civil Procedure Code which are as follows : "Order IX Rule 6 : Procedure when only plaintiff appears.-(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then- (a) When summons duly served-If it is proved that the summons was duty served, the Court may make an order that the suit be heard ex parte; (b) When summons not duly served-If it is not proved that the summons was duly served, the Court shall direct a second summons to be issued arid served on the defendant: (c) When summons served but not in due time-If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiffs default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. Rule 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.-Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.";