UCO BANK Vs. RAMCHANDRA NAMDEO SHIRKE

JUDGEMENT

(1.) The petitioner-bank had instituted Special Civil suit No. 94 of 1990 and the said suit came to be decreed by the learned Civil judge, Senior Division at Baramati on 16-11-1992. The defendant Nos. 1 to 7 were directed to pay jointly and severally an amount of Rs. 4,25,073.45 to the plaintiff with the proportionate costs and it was further directed that the principal amount of Rs. 1,50,000/- shall carry interest on the agreed rate of 16.1/2% per annum from the date of the suit till realisation of the amount. The defendant Nos. 1 and 7 are the husband and wife and defendant Nos. 4 and 6 are their sons. The defendant No. 1 was the manager of the joint family and was dealing in the construction business. On his approach, the plaintiff-bank had granted him cash credit facility of Rs. 75,000/- on executing the demand pro note dated 10-7-1981 (Exhibit 52). He had agreed to repay the said amount with interest at the rate of 19.50% per annum with quarterly rests. By way of security, he executed simple mortgage of the agricultural land on 26-7-1981 (Exhibit 35). Thus, the defendant no. 1 was the mortgagor and plaintiff was the mortgagee as per the mortgage deed (Exhibit 57). Defendant Nos. 2 and 3 were the guarantors for the said loan and they had executed deed of guarantee on 10-7-1981 (Exhibit 54). The cash credit payment was renewed and enhanced to Rs. 1,50,000/- on 18-10-1982 on the request of the defendant No. 1 and defendant No. 2 executed deed of guarantee (Exhibit 63) whereas the defendant No. 1 hypothecated goods and material by executing an agreement of hypothecation (Exhibit 64). The defendant could not repay the loan as agreed and as on 13-2-1988, he had a debt of Rs. 2,178,350. 60. lie executed an acknowledgment of the said balance (Exhibit 40).

(2.) It appears that the decree was initially challenged in first appeal No. 253 of 1994 and the defendant No. 2 had received notice in the said appeal on 22-5- 1995. He also received subsequent to the notice, notice in special Darkhast no. 1/94 on 19-6-1995. He approached the Court of learned Civil Judge, Senior division at Baramati and filed special civil suit No. 103 of 1995 on or about 16-11-1995 and prayed for setting aside the decree dated 16-11-1992 passed by the very same Court in Special Civil Suit No. 94 of 1990. The present petitioner filed written statement and opposed the suit. He filed an application in the said fresh suit on 13-1-1997 and prayed for framing criminal issues. This application was filed before the issues were framed at Exhibit 22 by the trial Court on 24-6- 1996. The trial Court therefore, passed an order on 26-6-1997 and directed that the issue No. 1 shall be treated as the preliminary issue. The said issue read as under : "whether the suit is tenable in law in view of the provision made under civil Procedure Code for setting aside the decree by preferring appeal or by making an application. "

(3.) After hearing both the parties, the learned Judge of the trial Court was pleased to answer the preliminary issue in the affirmative and thus, in favour of the plaintiff vide her order dated 14-10-1997 and hence this revision application against the said order.