RAJHANS KHANDSARI UDYOG Vs. CANARA BANK KIRATPUR

JUDGEMENT

(1.) Original Suit No. 65 of 1988 was filed by Canara Bank against M/s. Rajhans Khandsari Udyog and others for realisation of a sum of Rs. Nine Lakhs and odd (Rs. 10 lakhs approximately) with interest etc. and in case of default in payment for sale of the properties mortgaged for secured the loan.

(2.) On 3-4-1989 when the suit was called out the plaintiff was present. The defendant was absent and had not, till that date, filed any written statement although by an order dated 24-3-1989 they were directed to file the written statement on 3-4-1989 in terms of a prayer made by them. The Court, accordingly, decided to proceed under Order 8 Rule 10 CPC and it decreed the suit under the said provisions.

(3.) Subsequently, the defendants came up with an application under Order 9 Rule 13 CPC for setting aside the ex parte decree. Both the parties were heard on this application and by an order dated 29-9-1995 the learned trial Court allowed the application under Order 9 Rule 13 CPC on condition that within 15 days from the date of the order the defendants were to deposit 25 per cent of the sum under demand in the suit, amounting to Rs. 2,45,250.00, and to file written statement within 16-10-1995. In case of failure of these conditions, the order setting aside the ex parte decree would be deemed automatically to have been vacated. Against this order this application was filed initially as a First Appeal from order which was registered as FAFO No. 971 of 1995 under Order 43, Rule 1 (d) of the CPC. It is worth mention at this place that the time for filing the written statement was upto 16-10-1995, as indicated in the order dated 29-9-1995. The FAFO was also filed on 16-10-1995. In terms of the valuation of the FAFO it was placed before the Division Bench. When the matter came up before the Division Bench for hearing, the Court expressed its views that the appeal under Order 43, Rule 1 (d) of the CPC was not maintainable as, by the impugned order, the appellants' prayer under Order 9, Rule 13 CPC was allowed. On the prayer of the appellants, they were permitted to convert the application as one under Section 115 CPC. They did so and the application was renumbered as Civil Revision No. 70 of 1996.