Alok Sharma, J. - (1.) THIS miscellaneous appeal under Section 104 read with Order 43 Rule 1 CPC has been filed by the appellant -defendant -applicant (hereinafter 'the defendant') against the order dated 10 -7 -2009 passed by Additional District Judge (Fast Track) No. 2 Ajmer dismissing the application under Order 9 Rule 13 CPC for setting aside the ex -parte decree dated 13 -9 -2007 in favour of the respondent -non -applicant -plaintiff (hereinafter 'the plaintiff') in a suit for recovery of Rs. 3,11,830/ -.
(2.) HEARD learned counsel for the parties, and perused the impugned order dated 10 -7 -2009 passed by the trial court. The facts of the case are that the plaintiff filed a money suit for recovery of an amount of Rs. 3,11,830/ - before the trial court on 11 -8 -2005. Notice on the suit was served on the defendant. Since the defendant failed to appear before trial court, on 15 -10 -2005 an order for ex -parte proceedings was passed by the trial court. Thereafter on 23 -11 -2005 the counsel for the defendant Mr. Rajeev Joshi appeared and moved an application under Order 9 Rule 7 CPC for setting aside the ex -parte order. The said application was conditionally allowed by the trial court on 23 -11 -2005 subject to payment of costs of Rs. 300/ -. However, since the defendant neither paid the amount of costs nor his counsel appeared on future dates before the trial court, the ex -parte order dated 15 -10 -2005 continued to stand.
(3.) THE trial court then took the plaintiff's evidence, heard the plaintiff and the ex -parte judgment and decree was passed on 13 -9 -2007. Petition for execution of the ex -parte decree dated 13 -9 -2007 was filed by the plaintiff. On the execution petition the defendant was served warrants on 18 -11 -2008 to show cause as to why he should not be arrested.;