V K THYAGARAJAN Vs. SYNDICATE BANK

JUDGEMENT

(1.) FOR the The fifth defendant in O. S. No. 235 of 1988, on the file of the Additional Sub-Court , Erode, is the revision petitioner. The suit was filed by the first respondent herein for recovery of a sum of more than Rs. 64 lakhs from the defendants and out of their assets. An ex parte decree was passed on April 18, 1995. The same was sought to be set aside by filing an application as I. A. No. 809 of 1995. The same was seriously opposed by the first respondent on the ground that the court has no jurisdiction to consider the application in view of the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. By the impugned order, the lower court accepted the objection and held that it has no jurisdiction to try the petition and further directed transfer of the petition to the Tribunal at an early date. The same is challenged in this revision.

(2.) LEARNED counsel for petitioner submitted that the impugned order is patently incorrect in view of section 22 of the Act. LEARNED counsel sub-mitted that the application to set aside the ex parte decree passed by the civil court is maintainable before the civil court. The Tribunal gets jurisdiction to set aside an ex parte decree only if the decree is passed by it and not by the civil court. Emphasis was laid on clause (g) to sub-section (2)of section 22 of the Act wherein it is said thus : "setting aside any order of dismissal of any application for default or any order passed by it ex parte. " As against the said submission, learned counsel for the first respondent submitted that under Chapter III of the Act read with section 31 of the Act, the jurisdiction of the civil court is taken away completely and even in regard to interlocutory applications, the power is vested only with the tribunal constituted under the Act and not by the civil court. The only question that requires consideration is, whether the civil court has got jurisdiction to consider the application under Order 9, rule 13 of the Civil Procedure Code, 1908, in spite of the constitution of Tribunals under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

(3.) IN this case, an ex parte decree was passed before the constitution of the Tribunal, though the Act came into force long before the decree. When an ex parte decree was passed, the defendants had a statutory right to approach that court and file an application to set aside the ex parte decree under Order 9, rule 13 of the Civil Procedure Code, 1908, and if the application is beyond time, that application will have to be filed along with an application to condone the delay under the relevant provision of the limitation Act.