DHANWANTRAI R JOSHI Vs. SATISH J DAVE

JUDGEMENT

(1.) THE learned Single Judge by his order dated 10th November, 1997 has referred the matter to a Division Bench for deciding question

(2.) MAIN controversy is that whether a decree passed under Order VIII, Rule 5 or 10 of the Code of Civil Procedure) (C. P. C. , for short) can be set aside by filing an application under Order IX, Rule 13 of C. P. C. The learned Judge has referred to various decision of this Court, wherein justice Lodha Vyas, as he then was, Justice Palshikar and Justice Lodha have taken the view that a decree under Order VIII, Rule 5 can only be passed in presence of the defendant, on account of failure to file Written Statement. Justice Kapadia has held that a decree under Order VIII, Rule 5 can be passed even in absence of defendant. From the referring judgment, it appears that a contention was raised that such a decree passed under Order VIII, Rule 5 can be set aside by filing an application under Order IX, Rule 13 of C. P. C. Other judgments are to the effect that only appeal is required to be filed. Because of the contrary judgments, the matter is referred to a larger Bench.

(3.) AT the outset, we note that the learned Single Judge, in case of (Rashtriya Chemicals and Fertilizers Ltd. v. Ota Kandla Pvt. Ltd.), reported in 1992 Mah. L. J. , page 1266, arrived at the conclusion that where the defendant is served and represented by Counsel, but fails to file his written statement despite opportunity given to him, the decree passed against him would be one under the provisions of Order VIII, Rule 10 of the C. P. C. For setting aside such decree, an application under Order IX, Rule 13 is not maintainable. Against that judgment appeal was preferred and the Division Bench of this Court (P. D. Desai, C. J. and S. H. Kapadia, J. ,) had dismissed the aforesaid Appeal by holding that:-