NARMADABEN HIMATLAL SHAH Vs. PANNA CHANDRAKANT VADGAMA

JUDGEMENT

(1.) THE defendants have taken out this notice of motion praying for setting aside the decree passed in Suit No.618 of 1979 and restoration of the suit for hearing on merits and also by way of interim relief prayed for stay of the execution of the decree dated 12-8- 1997. This notice of motion is supported with an affidavit of defendant No.1(b) viz. Chanda Manikant Vadgama dated 12-9-1997 and affidavit of Shri Manikant Damjibhai Vadgama dated 12-9-1997.

(2.) ON behalf of the plaintiffs a detailed affidavit is filed by Shri Mahendra H. Shah, Constituted Attorney of the plaintiffs dated 24-4-1998 dealing with the case put forward by the defendants.

(3.) AS per the affidavit of Smt.Chanda Vadgama, defendant No.1(b), it is her case that till the death of the deceased, the defendant was looking after the matter and after the death of the defendant, the present defendants are brought on record and according to her defendant No.1(d) Shri Niranjan Lakhani was looking after the matter who always kept touch with the lawyer. The said Shri Niranjan Lakhani expires the year 1994. It is also her case that defendant No.1(a) is an old person and due to her old age, she is unable to move out and further that defendant No.1(e) is residing at U.S.A. Defendant No.1(c) was also under medical treatment on account of her husband's death and the deponent was not well conversed with the matter pertaining to courts. Her husband Manikant was entrusted to look after this work and due to his business he was required to go out of Bombay and when he was also away from Bombay and the matter was notified for hearing before the Court, a registered letter issued by the advocate was received. However, the same could not be attended and for want of instructions the advocate who represented the defendant has sought discharge in the said suit. As Manikant was away from Bombay for business purpose for about four months i.e. from April, 1997 and on 6-9-1997 when he returned from Nasik he went to the office of the former advocate and he learnt that the advocate has got discharged and ex-parte decree was passed as per decree dated 12-8-1997. It is the case of the defendants that the defendants are ladies who are not much aware about the Court matters and further that Shri Niranjan Lakhani who was looking after the matter had died on 20-5-1994. Shri Manikant Vadgama for his business purpose required to move out of Bombay and when he returned from Nasik in the month of September, 1997 and when he contacted the advocate thereafter, he came to know about the ex-parte decree and this motion is taken out praying for setting aside the ex-parte decree.