SHAH SHAILESH KUMAR VINODKUMAR Vs. ASHOK KUMAR VAJERAJ

JUDGEMENT

(1.) The opponent filed Summary Suit No. 4587 of 1988 against the applicants in the City Civil Court at Ahmedabad for recovery of an amount of Rs. 53.908.77 with running interest at the rate of 18% per annum. The trial court passed a decree on 28.7.1989 against the applicants. The opponent-plaintiff is a partnership firm carrying on business of cloth and the applicants are also dealing in business of cloth Applicant No. 2 is the partnership firm registered under the Indian Partnership Act and applicant No. 1 is a partner thereof. Between the parties there was business relationship. The opponent-fiem filed the suit for non-payment of dues arising out and during the course of the business transactions. The suit was decreed ex-parte.

(2.) The applicants filed an application for restoration and setting aside the ex-parte decree inter-alia contending that there are triable issues between the parties in the said suit. The application was filed under Order 37 Rule4 of the Code of Civil procedure 1908 (Code for short) for setting aside the ex-parte decree passed on 28.7 on account of non-fulfilment of the conditional order passed by the court at the time of hearing of summons for judgment.

(3.) The Auxiliary Chamber judge of the City Civil court (Court No.9) reached the conclusion that the decree under challenge is not an ex-parte decree in view of the decision of the Honourable Supreme court in Shah Babulal Khikji Vs. Jayaben D. Kanta AIR 1981 SC 1786. The trial court also relied on other decisions and held that the application for setting aside the ex-parte decree under Order 37 Rule 4 of the Code is not maintainable as there was a fullfledged decree amounting to judgment. In the opinion of the trial court it could be challenged by way of an appeal. In short the trial court held that the application for restoration or setting aside the ex-parte decree under Order 37 Rule 4 of the Code is not maintainable and dismissed the application on 8.3 Hence this revision application under Section 115 of the Code.