RAMESHCHANDRA RATHORE Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) Defendant No. 2 who was suffered ex-parte decree in a civil suit filed by plaintiff-Bank (respondent No. 1 herein) wanted to get rid of the same by making an application under Order 9, Rule '13 of C.P. Code. However the learned trial Judge refused to set-aside the said ex-parte decree by impugned order and hence this appeal. The impugned order is dated 24.9.1999 passed in M.J.C.No. 58/99 by District Judge, Indore.

(2.) Respondent No.- 1 Bank filed a suit being C.S. No.36B/89 against the appellant (defendant No. 2) and other respondents (defendant Nos. 1, 3, 4, 5, 6, 7) for recovery of Rs. 1,17,000/-. This suit resulted in passing a decree on 23.6.1990 in favour of plaintiff and against all the defendants. So far as defendant No. 2 and defendant No. 1 (Since dead) and now represented by his legal representatives were proceeded ex-parte. In other words these 2 defendants suffered ex-parte decree.

(3.) This gave rise to an application made by the appellant (defendant No. 2) under Order 9, Rule 13 of C.P. Code on 22.11.1993 being M.J.C. No. 58/99 out of which this appeal arises. This application was essentially founded on the allegations that defendant No.2 was not served with the summons of plaint. It was alleged that service effected on him by way of publication on 4.2.1990 was not a valid service nor, there was any occasion to get him served by way of publication. It was alleged that he was not aware of any publication as he never came across of the said publication notice. It was then alleged that he came to know only when warrant of attachment was served on him on 16.11.1993 and, therefore, the present application was made for setting aside of the said ex-parte decree.