- (1.) Order dated 25.3.2004 passed by the learned Civil Judge (Senior Division), Titilagarh in MJC No. 4 of 2001 rejecting an application under Order 9 Rule 13 read with Section 151 of the C.P.C. is under challenge in this appeal.
(2.) The factual matrix which gives rise to this appeal is that T.S. No. 29 of 1988 was filed by the respondent-Bank in the court of learned Civil Judge (Senior Division), Titilagarh for realization of Rs.6,37,393.75 together with pendente lite and future interest. The suit was decreed ex parte on 5.01.1995 and the defendants- appellants were directed to pay a sum of Rs.6,37,393.75 together with pendente lite and future interest at the contractual rate with cost. By Letter No. 338/20/9597/REC/AG/2001 dated 22.02.2001, the Asst. General Manager, Zonal Office of the respondent-Bank intimated the defendant-appellant no. 2 about the ex parte judgment and decree passed in T.S. No. 29 of 1988. Thereafter, a petition under Order 9 Rule 13 read with Section 151 of the C.P.C. (MJC No. 4 of 2001) was filed by the defendants-appellants stating, inter alia, that the defendant-appellant no. 2 was the proprietor of M/s. The Utkal Oil and Chemical Industries, Jagatpur, Cuttack (appellant no. 1). Due to the alleged non-payment of loan dues, T.M.S. No. 376 of 1978 was filed by the respondent in the court of learned Civil Judge (Senior Division), Cuttack for realization of the loan dues along with other reliefs. The said suit was dismissed for default on different occasions. Lastly, after restoration of the suit on 3.4.1984, the respondent filed a petition for return of the plaint, which was allowed by order dated 16.3.1988. Thereafter, T.S. No. 29 of 1988 was filed in the court of learned Civil Judge (Senior Division), Titilagarh for the aforesaid relief. The summons issued to the defendants (appellants herein) returned un-served with a report of the Process Server that the defendant-appellant no. 1 was not in existence and defendantappellant no. 2 was not residing in the given address. Thus, learned Civil Judge directed to take out notice with correct address. The respondent without complying with the same prayed for taking out substituted notice under Order 5 Rule 20 C.P.C. which was mechanically allowed by order dated 3.9.1994. Consequently, there was publication of notice in Odia daily News Paper, "Dharitri" dated 27.9.1994. Considering the same, the defendant-appellants were set ex parte on 16.11.1994. It would be relevant to mention here that the suit against defendant no. 3, who was the sole guarantor, had already been abated due to non-substitution. Subsequently, ex parte judgment was passed on 23.12.1994 against the defendantsappellants and they were directed to pay a sum of Rs.6,37,393.75 with cost together with pendente lite and future interest at the contractual rate. As no notice was ever served on the defendantsappellants, they could not know about the ex parte judgment and decree. The appellant no. 1-Industry had been closed down since last 20 years and three years before the Industry was closed, the appellant no. 2 had started staying in Calcutta with his wife, as he was incapacitated in an accident. After a lapse of seven years of the ex parte judgment and decree dated 23.12.1994/5.1.1995, the Asst. General Manager, Zonal Office of respondent-Bank vide Letter No. 338/20/9597/REC/AG/2001 dated 22.2.2001 intimated the appellant no. 2 about the ex parte judgment and decree in his Calcutta (now Kolkata) address. Thus, the appellant No.2 came to know about the same and after making a detailed enquiry and inspection of the case record, the appellants filed the petition under Order 9 Rule 13 C.P.C.
(3.) The respondent as opposite party filed objection denying the assertion made in the petition under Order 9 Rule 13 C.P.C. It was contended that notice was duly served on the defendantsappellants in their address at Cuttack and Titilagarh. Further, a substituted notice under Order 5 Rule 20 C.P.C. was also taken on the defendants-appellants by publication of the notice in a widely circulated Oriya daily newspaper, namely, 'Dharitri' at Cuttack and Titilagarh. Thus, the defendants-appellants were fully aware of the suit filed for realization of the loan dues outstanding against them. They had deliberately taken a false plea in order to avoid payment of dues outstanding against them. Even before filing of the suit they were repeatedly requested for repayment of the loan as per the terms and conditions of the loan agreement and on failure of repayment of the same, the suit was filed against them for recovery of the dues after taking all possible steps as per the provisions of law. In spite of due service of notice and when they did not turn up to appear and contest the suit, the same was decreed ex parte. When they came to know that the respondent-Bank is taking steps to file execution case for realization of the loan dues, they filed a petition under Order 9 Rule 13 C.P.C. after lapse of seven years from the date of ex parte decree. The delay in filing the petition under Order 9 Rule 13 C.P.C. was also not properly explained. Hence, they prayed for dismissal of the petition filed under Order 9 Rule 13 C.P.C.;