UCO BANK Vs. K SWAIN BRICKS INDUSTRIES

JUDGEMENT

(1.) WHEN the application of the applicant-Bank has been taken up for consideration, neither of the defendants has been found present like the previous occasions. The applicant Bank has made this application for an order to be passed under Sub-section (22) of Section 19 for the issuance of a certificate for a sum of Rs. 10,82,133.72 together with pendente lite and future interest on the aforesaid claim up to the date of payment at the rate of fourteen percent per annum to realise from the sale of the mortgage property described in the Schedule which has been mortgaged with the applicant-Bank against the five defendants.

(2.) From the point of relevance, the facts that the trying Court being the Civil Judge, Senior Division, First Court, Cuttack has been pleased to deliver and pronounce judgment and to make an order of decree by Order No. XXI dated April 5, 1996 in connection with T.M.S. No. 28 of 1994 instituted by the applicant-Bank against those five defendants and the judgment and decree have been, pronounced under Section 33 of the Code of Civil Procedure, 1908 against those persons on a preliminary basis, after taking the form and character of the preliminary decree have constituted the basis of and have acted as the starting point of the present legal recourse. In that judgment and order the suit was decreed exparte and as a preliminary one for a sum of Rs. 3,14,900.22p., against the defendants with costs. In that order the defendants were directed to pay the decreetal due with P.I. and F.I. at the rate of fourteen percent per annum to the plaintiff's Bank within three months, hence failing which the plaintiff Bank would realise the same from the same defendants through the process of law by making the decree final and selling the mortgaged 'B' schedule properties of the plaint. Thereafter a decree was necessarily, drawn on April 20, 1996. At the relevant time when the applicant-Bank did institute the above suit, the present Tribunal was not in existence. Factually speaking, the defendants did not prefer any appeal against the said ex parte decree of the said Court before the appropriate appellate Court under Section 96 of the Code of Civil Procedure, though Sub-section (2) of that very section which reads as follows :

(3.) FOR convenience, Section 31 and 31 (A) of the present Act arc being set forth below: