S N MANI Vs. INDIAN OVERSEAS BANK

JUDGEMENT

(1.) The appellant is the second defendant in C.S.No.17/1992 on the file of this Court. The suit was decreed exparte as early as 16.3.1995. Against the appellant as well as the second respondent herein the said suit was filed by the first respondent-the bank for recovery of a sum of Rs.3,91,118.45. The appellant herein filed application Nos. 86 and 87 of 1997 to condone the delay of 596 days in filing the petition for setting aside the exparte decree dated 16.3.95 and for setting the said exparte decree. The appellant also filed an application No. 850/1997 seeking permission to pay 25% of the decree amount. When these applications were listed before one of us (S.JAGADEESAN,J.)for disposal, an order was passed on 2.7.1997 after securing the presence of the second respondent herein by the issue of non-bailable warrant.

(2.) The issue of non-bailable warrant was forced by the conduct of the second respondent herein as he refused to appear before this Court in spite of the service of summons in the application. The presence of the second respondent was insisted by this Court as it was contended by the appellant herein that he stood as a guarantor for the borrowings of the second respondent and even though the business was a joint venture, the appellant's share is only 25% and as such the appellant cannot be made liable for more than the said 25% of the debt.

(3.) After the issue of non-bailable warrant, the second respondent appeared before this Court and admitted that he is liable to pay 50% of the debt and the remaining 50% is to be paid by the appellant herein. When the exparte decree is being set aside at the instance of the appellant, naturally, the second respondent is also benefited by the same and accordingly his admission and undertaking of the payment of 50% was recorded by this Court in the order dated 2.7.1997 and ultimately this Court passed the following order.