MOUSHUMI BHATTACHARYA,J. - (1.) The Court : This is an application filed by the defendant no.1 for recalling and setting aside a judgment and decree dated 31st August, 2007 passed ex parte against the defendant no.1. A prayer has also been made for condonation of delay in making the instant application since eleven years have passed since the date of the ex parte decree.
(2.) The grounds taken by the defendant no.1/applicant are the following.
(3.) Ms. Shroff, the advocate conducting some matters on behalf of the defendant no.1 came to know some time in December 2017 that an execution case pertaining to the suit being EC no. 268 of 2007 has been listed in the cause list of this Hon'ble Court. Pursuant to such, the advocate appeared in the execution case and requested for a copy of the execution application which was served on her on 8th December, 2017 and was received by the defendant no.1 soon thereafter. The petitioner apparently came to know from the execution application that an ex parte decree had been passed by this Court on 31st August, 2007. The pleadings in the application thereafter are concerned with the order passed in the execution case and the steps taken by the advocate to obtain a certified copy of the decree dated 31st August 2007 which is presently sought to be recalled. The remaining pleadings are concerned with the defendant no.1 having gone into liquidation some time in 2004 and that the defendant no.1 resigned as a director from the defendant no.2 and the defendant no.3 in 2000 and 2002 respectively. The petitioner admits that a copy of the writ of summons in the suit was served on him and that the advocate-on-record representing the petitioner was served with the requisite papers for doing the needful. The petitioner/defendant no.1 states that on assigning the responsibilities of the matter to the advocate-on-record, the petitioner did not make any further inquiries and was away from the city from 2004 to 2015. The petitioner did not think it necessary to personally enquire into the status of the matter and proceeded on the basis that the Advocate engaged was looking after the interest of the petitioner. The petitioner also states that the Advocate-on-record had admittedly missed the suit in the list and came to know of the ex parte decree only upon being confronted by the petitioner. Further, the junior engaged to look after the matter in the office of the Advocate-on-record also left sometime in 2004. Noticeably, it appears from the pleadings that besides missing the suit from the cause list, the Advocate also came to know (at least after December, 2017) that the petitioner had filed an application being GA No. 3040 of 2001 for dismissing the suit and for rejecting the plaint. The pleadings in the application strangely do not mention how the aforesaid application was subsequently discovered, particularly when such application was filed by the Advocate representing the defendant No. 1. A certified copy of the said application was obtained in December, 2017 and the Advocate-on-record of the petitioner came to know that the said application for rejection of the plaint was dismissed by an order dated 6th May, 2008.;