MITHLESH Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) Daughter-in-law of deceased defendant No. 11 Babu Ram is appellant against order refusing to set aside ex parte decree against Babu Ram. Suit of the plaintiff is for recovery of Rs. 14,73,400.00. There were several defendants. Some of whom were the principal debtors and the others the guarantors. Case of appellant is that when property bequeathed to her by her father-in-law Babu Ram was put to auction she made an enquiry and immediately on the next date coming to know that such auction is on the basis of an ex parte decree, filed application for setting aside the same on 26.5.1992. In the petition she alleged that Babu Ram had no notice of the suit and accordingly, ex parte decree is valid. Plaintiff/respondent contested the application alleging that Babu Ram had notice of the suit but he did not contest and accordingly, there is no sufficient cause made out by appellant for his absence on the date of hearing of the suit.

(2.) In the trial Court application as decided on the basis of the records of the suit, affidavits as well as other documents. Trial Court held that application for setting aside the decree at instance of the daugther-in-law is not maintainable, notice was served on Babu Ram who did not appear on th date faced for hearing of the suit and on that account there is no scope for interfering with the ex parte decree. It also held that the ex parte decree being dated 22.9.1986, application for setting aside ex parte decree is barred by limitation since the same was filed on 26.5.1992. This is grievance of appellant.

(3.) Mr. Goel, learned counsel for the appellant submitted that finding of non-maintainability of the application by legal representative/successor of the defendant No. 11 is not correct and is liable to be vacated. On the materials available on record there cannot be any conclusion that notice was served on the defendant No. 11 and in absence of notice to defendant No. 11 ex parte decree against him is to be set aside. As regards limitation, it was submitted that immediately knowing about the existence of ex parte decree against defendant No. 11 application for setting aside the same has been filed on the next day and accordingly limitation is to be computed from the date of knowledge and the same is within period of limitation. Mr. Grover learned Counsel for the plaintiff/respondent on the other hand submitted that on the facts and in the circumstances of the case conclusion of the trial Court on each point is justified and calls for no interference.