GOKUL DAIRY FARM Vs. CANARA BANK

JUDGEMENT

(1.) The revision under Section 115 of the Code of Civil Procedure, 1908, impugns an order dated February 19, 1996, recorded by the First Addl. District Judge, Agra, in Misc. Case No. 19 of 1995, between the parties. By the impugned order the learned court below had dismissed an application of the present revisionists under Section 151 of the Civil Procedure Code.

(2.) A suit was filed by the respondent-bank against the present revisionists for realisation of a certain sum. The suit was heard ex parte and was decreed on January 1, 1992. An application under Order 9, Rule 13 of the Civil Procedure Code, 1908, was preferred by the present revisionists along with a prayer for condonation of delay. The parties were heard. In the ex parte decree the decretal amount was more than Rs. 5 lakhs. The decree holder (plaintiff) conceded to the prayers for setting aside the ex parte decree and for condonation of delay subject to deposit of half of the decretal amount within two months. Under such concession the court allowed the application under Section 5 of the Indian Limitation Act, as also the prayer for setting aside the decree on condition that the defendants (present revisionists) deposited Rs. 2,50,000 in the plaintiff-bank within two months from the date of the order, failing which the application would stand dismissed automatically and the bank would be entitled to move for execution of the decree passed in the suit. This order was recorded on February 24, 1995, in the presence of both the parties and the deposit should have been made by April 24, 1995.

(3.) The present revisionists came up with an application under Section 151 of the Civil Procedure Code to recall the order dated February 24, 1995. The ex parte decree was also brought to execution and before the executing court an application was moved for staying the execution proceedings after permitting the judgment-debtors to deposit 10 per cent, of the decretal amount. It is stated that the executing court had directed deposit of Rs. 1,00,000 for staying the execution proceedings and deposit was made. It was further submitted that the High Court also directed deposit of a further sum of Rs. 25,000 and upon such deposit execution was stayed. The revisionists contended that a total sum of Rs. 1,25,000 has been deposited by them and the order impugned should be set aside.