STATE BANK OF INDIA Vs. APNA METALS

JUDGEMENT

(1.) By this order, I propose to dispose of the application filed by the defendants under Order 9 Rule 13 Civil Procedure Code praying for setting aside the judgment and decree dated 28/11/1991 passed in the present suit.

(2.) The present suit was instituted by the plaintiff bank against the defendants for recovery of Rs.2,49,572.78 along with pendente lite and future interest. Summons and notices were issued to the defendants. The defendants, however, could not be served for one reason or the other although, eight attempts were made to serve the defendants. In view of the aforesaid circumstances, the defendants were allowed to be served through substituted manner of service by publication of the summons in a Newspaper. The defendants were thereafter, served through publication. In spite of service on the defendants in the aforesaid manner, the defendants did not appear and accordingly they were ordered to be proceeded ex parte. The plaintiff was allowed to lead evidence by filing an affidavit in terms of which affidavits by way of evidence were filed on behalf of the plaintiff bank and this Court by judgment and order dated 28/11/1991 passed a decree in favour of the plaintiff and against the defendants jointly and severally with interest at the rate of 16.5% pursuant from the date of the suit till realisation. As against the aforesaid judgment and decree passed ex parte against the defendants, the present application registered as I.A.No.7048/1994 has been filed on which, I heard the learned counsel appearing for the plaintiff as also the counsel appearing for the defendants.

(3.) Counsel appearing for the defendants/ applicants submitted before me that the defendants were not duly served with the summons and notices issued by this court and the defendants had knowledge about the passing of the decree in the aforesaid suit only when notice of the execution petition was served on the defendants some time in May, 1994 and accordingly an application has been filed seeking for setting aside the decree which was passed ex parte without properly serving summons and notices on the defendants. It was also submitted that defendant No.1 closed his business and defendant Nos.2 and 3 changed their address which fact was also known to the plaintiff bank, but, in order to obtain a decree behind the back of the defendants, changed addresses were not furnished and summons and notices were issued on the old addresses of the defendants which were changed and that fact was known to the plaintiff bank.