- (1.) THE petitioner has challenged order dated 15.11.2010 by which application filed under order IX Rule 13 of the CPC by the respondent has been allowed.
(2.) THE case of the petitioner is that it filed a suit for recovery of Rs. 9,10,485.20 P. due as on 17.4.1990 against the firm M/s Quality Box Makers [for short 'the firm'] and seven other defendants. The respondent (Nirmala Kaushik) is admittedly a partner in the firm and was impleaded as a party in the suit as defendant No.6. The suit was contested by defendant nos.2, 3 and 8 by filing their joint written statement. The other defendants did not appear despite service and were proceeded against ex parte.
(3.) THE trial Court decreed the suit on 14.1.1997 to the tune of Rs. 9,10,482.20 P along with interest @ 15% per annum from the date of filing of the suit. Since, the trial Court passed a simple money decree to the effect that "the suit of the plaintiff succeeds and is hereby decreed to the tune of Rs. 9,10,485.20 paise with costs and interest @ 15% P.A. from the date of filing of the suit till in actual realization", the petitioner filed the appeal for modification of the decree, which was partly allowed on 30.7.1999 and the trail Court decree was modified to the extent that it would deemed to be a composite decree passed under Order 34 of the CPC and the defendants were allowed six months time to make the payment, failing which the plaintiff was held entitled to recover the decretal amount by sale of mortgaged property and from the other properties of the defendants if the mortgaged properties were not found sufficient to realize the decretal amount. In the meantime, defendant No.6 filed an application under Order 9 Rule 13 of the CPC, for setting aside the judgment and decree of the trial Court. The said application, contested by filing reply, dismissed on 22.1.2009 by the trial Court on the ground that there is no justifiable reason to set aside the ex parte decree and the application was also found barred by limitation as it was moved after expiry of more than 10 years. The order of the trial Court was challenged by way of appeal. It is also the case of the petitioner that out of defendants No.4 to 7, only defendant No.6 filed the appeal which has been allowed by the appellate Court vide impugned order dated 15.11.2010 observing that "consequently, the application of defendant No.6 for setting aside the decree is accepted qua her alone. So far as the liability of defendant No.1 is concerned, it having been served through defendants No.2, 3 and 8 who later did not appear, is not disturbed. The defendant No.1 could have been served even through one of its several partners i.e. the defendants".;