MADHUSUDAN SHRIKRISHNA Vs. EMKAY EXPORTS

JUDGEMENT

(1.) Heard. The present appeal arises from the order dated 13-9-2004 passed in Notice of Motion No.2322 of 2004 in Summary Suit No.3835 of 2003. By the impugned order, the motion taken out by the respondents, the original defendants in the suit, has been allowed and an ex parte decree in the said suit has been set aside.

(2.) The undisputed facts in the matter are that, by Advocate s notice dated 22-7-2002, issued on behalf of the appellant, the respondents herein were called upon to pay an amount of Rs.3,00,000/- which was the subject-matter of the cheque dated 7-6-2002. As there was failure to pay the said amount, proceedings under Section 138 of the Negotiable Instruments Act, 1881 were initiated. Thereafter, on 1-12-2003 Summary Suit No.3835 of 2003 came to be filed against the respondents claiming an amount of Rs.9,03,732/- along with interest thereon on account of failure to pay the said dues payable by the defendants pursuant to supply of goods by the plaintiff. The summons was duly served and as there was failure on the part of the respondents to record their appearance in the suit, the matter proceeded in accordance with the provisions of law and an ex parte decree came to be passed on 20-2-2004. In the execution proceedings taken out pursuant to the said ex parte decree, attachment was levied on the immovable properties of the respondent Nos.2 and 3 on 23-7-2004.

(3.) The impugned order setting aside the ex parte decree reads thus: