RAJ PREM MALIK Vs. GAMBHIR SINGH

JUDGEMENT

(1.) WITH the consent of learned counsel for the parties, the appeal is taken up for final disposal. Arguments heard.

(2.) THE appellant/defendant was proceeded against ex parte by the trial court on 6th April, 1999. It is indisputable fact that the said ex parte order was passed under Order 17 Rule 2 CPC and not under Order 17 Rule 3 CPC. Thereafter, the appellant moved an application dated 31.05.1999 before the said Court for setting aside the ex parte decree passed by the learned Additional District Judge. It was averred that two suits were filed, out of which, one suit was filed by the bank against both the appellant, who was the guarantor, and the respondent, the principal borrower and the second suit was filed by the respondent against the appellant. Learned counsel for the respondent has alleged that he has filed suit against the appellant on the ground that the truck in question was taken by the guarantor and he has earned profits after plying it. The appellant has explained these facts in para 5 of the application at page 20 of the file moved under Order 9 Rule 13 which runs as follows :

(3.) I find that the appellant has shown sufficient ground for not appearing before the Court. I, therefore, set aside the order of ex parte passed by the trial court against the respondent subject to the condition and as agreed the appellant who has already deposited the decretal amount would not withdraw it till the pendency of this case.