VIJAY CHADHA Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) This writ petition arises out of an order dated 30th November, 2005 passed by the Debt Recovery Appellate Tribunal, Delhi whereby Miscellaneous Appeal No. 300/2002 filed before it by respondents No. 4 and 5 in this petition has been allowed and an ex parte decree passed by DRT-I set aside qua the said respondents only. The petitioner's grievance is that although he was a party to the appeal mentioned above and had filed an appropriate reply to the same in which it was inter alia contended that the ex parte decree passed by DRT-I ought to be set aside not only qua appellants/respondents No. 4 and 5 in the present writ petition but also qua the petitioner yet the Tribunal had neither noticed the said prayer nor dealt with the submission that the decree was indivisible within the meaning of the proviso to Order 9 Rule 13 of the Code of Civil Procedure.

(2.) Appearing for the petitioner, Mr. Das, learned senior counsel made a two fold submission before us. Firstly, he contended that the question whether or not the decree could be set aside only against the appellants in the appeal filed before the appellate tribunal or had to be set aside against the rest of the respondents also, being an indivisible decree within the meaning of proviso to Order 9 Rule 13 of the CPC ought to have been addressed by the appellate Tribunal and a proper view on the same taken. The Tribunal had not, however, examined the said matter and thereby deprived this Court of the advantage of its opinion on the subject. The Tribunal could, therefore, argued the learned counsel, be asked to examine the said aspect and pass a fresh order on the request made by the petitioner for setting aside the decree qua him also.

(3.) Alternatively, it was submitted that the decree in question was an indivisible decree within the meaning of proviso to Order 9 Rule 13 of the CPC and could, therefore, be set aside qua respondents 4 and 5, only if, it was set aside also against the petitioner herein.