NARESH CHANDRA AGARWAL Vs. BANK OF BARODA

JUDGEMENT

(1.) Leave granted.

(2.) This appeal arises out of an application filed by the appellant under Order 9, Rule 13 read with Section 151 of the Code of Civil Proceduure (CPC) before an Additional District Judge/Special Judge/Special Judge (S.C. and S.T. Act), Pilibhit, wherein the appellant had prayed for setting aside the ex parte judgment and decree dated 9-5-1995 made in O.S. No. 107/84. The said application of the appellant came to be dismissed and an appeal filed against the said dismissal of the application also came to be dismissed by the High Court, hence, this appeal before us.

(3.) The case of the appellant is that the plaintiff-Bank had filed a suit against a partnership firm by name M/s. Ashok Khad Agency for the recovery of certain sums of money advanced to it by the plaintiff-Bank. It is stated in the original suit defendants 2 and 3 who are the brothers of the appellant were partners of the 1st defendant firm which was the debtor to the bank and along with them defendants 4 to 8 were the guarantors to the loan advanced by the Bank to the said firm. It is also stated that during the pendency of the said suit defendant No. 8 who was the father of the appellant died, hence, an application to bring his legal representatives was made in which appellant was sought to be included as one of the legal representatives of the deceased 8th defendant. It is also alleged that the notice of the said application so far as the appellant is concerned was addressed to 91, Mohalla Dalchand, Pilibhit and the said notice issued by the Court was returned back with an endorsement as "refused". The trial Court without being satisfied as to the correctness of the service of notice, mechanically held the service as sufficient and allowed the substitution application of the plaintiff-Bank and proceeded to decree the suit ex parte.