A GURUMMA Vs. K SIMMAIYA

JUDGEMENT

(1.) Respondent/plaintiff filed a money suit against the appellants/defendants for Rs. 91,500 on 10.1.2007. On 5.5.2008 when the case fixed for cross examination of the plaintiffs' witnesses, there was no representation on behalf of the defendants and therefore the Court below proceeded ex parte against the defendants. On the said date evidence of all the parties was directed to be closed, arguments were heard and final judgment and decree was also passed. According to the defendant No. 2, on 9.4.2010 when attachment warrant was received in the office he came to know about some judgment against him. On further inquiry, he came to know that on 5.5.2008 ex parte judgment and decree was passed against him. On 15.4.2010 the defendants filed an application tinder Order IX Rule 13 read with Section 151 CPC for setting aside the ex parte judgment and decree. By the impugned order dated 1.12.2010 the above application filed by the defendants has been rejected by the Court below and it is this order which is under challenge in this appeal.

(2.) Counsel for the appellants/defendants submits that the defendants had engaged one Tarun Sarkar advocate of Durg who in turn engaged Shri Chandra Shekhar Pandey-local advocate of Raipur to defend their case but on account of some confusion between the two advocates and illness of Tarun Sarkar, on 5.5.2008 there was no representation on behalf of the defendants and therefore the Court proceeded ex parte against them. She submits that in all fairness on 5.5.2008 when the defendants were not represented, the Court below could have proceeded ex parte against them but could not have passed the ex parte judgment and decree. She submits that judgment and decree has been passed in a hurried manner without giving sufficient opportunity to the defendants.

(3.) On the other hand, counsel for the respondent/plaintiff supports the order impugned and submits that there is no legal rider for the Court to pass ex parte judgment and decree on 5.5.2008 when there was no representation on behalf of the defendants. He submits that much prior to receiving attachment warrant, on 13.3.2009 it was within the knowledge of the defendants that ex parte judgment and decree was passed against them and that is why they had appeared in the execution proceedings and had also signed the order sheet. He submits that the Court below is justified in rejecting the application filed by the defendants because no sufficient reason was assigned by the defendants for setting aside the ex parte judgment and decree.