MURLIDHAR SHARMA Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) The present Misc. Appeal is directed against the order dated 1.3.95 passed by Second Addl. District Judge, Rajnandgaon in Misc. Civil Case No. 30/93 on the application of Murlidhar Verma (who was defendant in the Civil Suit No. 20-B/92) under Order 9, Rule 13, Code of Civil Procedure.

(2.) Brief facts of the case are that the State Bank of India advanced loan to Murlidhar Verma (the defendant in the said suit) and on his not paying the loan amount together with interest, the Bank was compelled to file suit for recovery of the amount, to the extent of Rs. 61,885.35 P. The notices were issued to the defendant (who was the sole defendant) and as .per process server, the notice was reported to be personally served. On account of the non-appearance of the defendant, the suit proceeded ex-parte and it was decreed on 19.3.1993 and the decree was for an amount of Rs.61,885.35 P. together with interest. The present appellant Murlidhar Verma moved an application under Order 9, Rule 13, Civil Procedure Code on 10.9.93 for setting aside the exparte decree dated 19.3.93. The case as set up was that the warrant of attachment of the agricultural holding of the appellant was issued on 24.8.93 and he appeared on 30.8.93 when he could have the knowledge about the exparte decree in the said suit against the defendant. The application was supported with an affidavit. There was also an application under Sec. 5, Limitation Act for condonation of delay which was also supported by an affidavit. In the affidavit filed alongwith the application under Order 9, Rule 13 CPC, it has been stated that it was the warrant of attachment of his property in pursuance of which the appellant could have the knowledge about the exparte decree, on 30.8.93 whereupon the proceedings for attachment of the agricultural holding were taken. He appeared in the Court on 30.8.93 and for the first time he could know that the suit (Civil Suit No. 20-B/1992 had been decreed ex-parte against him. He, thereafter, alongwith his Counsel, went for inspection of the record on 10.9.93 and had the detailed knowledge of the exparte decree dated 19.3.93 and he also came to know that he was not served with the summons. On having acquired the knowledge of this, he moved the Court for setting aside the exparte decree, under Order 9, Rule 13, CPC.

(3.) The application under Sec. 5, 'Limitation Act was also accompanied. In both the applications, which are dated 10.9.93, it has been stated by the learned-Counsel for the appellant that the notice of execution was fixed on the house of the appellant on 24.8.93 though this fact has not been stated either in the application or in affidavit but he states that this is a matter of record.