ANDHRA BANK Vs. DHAKE DYES AND CHEMICALS PVTLTD

JUDGEMENT

(1.) THIS is a notice of motion taken out by the defendant Nos.2 to 5 in Suit No. 895 of 1992 for setting aside the decree passed by order dated 17th March 1997. A preliminary objection to the tenability of this application has been raised by the plaintiffs. According to the plaintiffs, the decree has been passed against the defendants by the Court under the provisions of Order VIII of C.P.C. and therefore, in terms of the judgment of the Division Bench in the case of Dhanwantrai R. Joshi and others vs. Satish J. Dave and others, reported in 1998 (3) Mah L.J. 924 = 1999 (1) Bom.C.R. 97, this application is not tenable and the remedy of the defendants is to file an appeal against the decree.

(2.) THE learned counsel appearing for the defendants, on the other hand, submits that the decree has been passed against them not under the provisions of Order VIII but under the provisions of Order IX. The learned counsel submits that the Court did not by Order dated 17th March 1997 passed a decree assuming that the contents of the plaint are admitted by the defendants in the absence of written statement, but the Court required the plaintiffs to prove the facts stated in the plaint and thereafter, pronounced the judgment and this, according to the learned counsel, amounts to the decree being passed under the provisions of Order IX and therefore, according to the learned counsel, an application under Rule 13 of Order IX is tenable. The learned counsel submits that the suit was set down for ex-parte hearing and as the decree has been passed after setting down the suit for ex-parte hearing, the decree passed against them is referable to the provisions of Order IX and not to the provisions of Order VIII. Now, In order to appreciate this rival submission, it is necessary to refer to the order which is sought to be set aside by this motion. The relevant part of the order reads as under :