M.P.Gupta, J. - (1.) The matter comes up for consideration of stay petition. However, with consent of the learned counsel for the parties, the matter is finally heard.
(2.) The plain tiff-non-petitioner had filed a suit for recovery of Rs. 11,7007- on the basis of a promissory note dated 15.7.90. The suit was filed in 1993. On 11.7.94, the learned counsel for the defendant-petitioner pleaded no instruction. Consequently, the suit proceeded ex-parte and vide judgment and decree dated 6.5.96, a decree for a sum of Rs. 11,700/- alongwith pendente lite interest and future interest @ 18% was passed with costs. Thereafter, on 22.1.96, the present application was filed by the petitioner under Order 9 Rule 13 for setting aside the said ex-pa rte decree which application has been dismissed by the impugned order.
(3.) The contention of the learned counsel for the petitioner is that after receipt of the summons, the defendant had engaged the counsel and since he carries on the business of road transport, most of the time he remains outside the town in connection with his business and his counsel pleaded no instruction without informing him, and he had filed the application for setting aside the ex-pa rte decree and immediately on coming to know of it. It is contended that in view of the judgment of Hon'ble the Supreme Court reported in 1993 SC 1182 and 1998(2) SCC 206, so also in view of the judgment of this Court reported in 1998 RLW-107, before pleading no instruction, the learned counsel should have informed the petitioner and since he was not informed, the petitioner has been deprived of the opportunity of putting forward his case.;