LAXMAN SINGH Vs. STATE BANK OF INDORE

JUDGEMENT

(1.) THE appellant defendant has filed this miscellaneous appeal under Order XLIII Rule 1(d) of the Code of Civil Procedure (for short 'the Code') against the order dated 12.4.1999 passed by Additional District Judge, Badwaha (West Nimar), in Misc. Civil Case No. 119/96, whereby rejected the application for setting aside ex parte judgment and decree under Order IX Rule 9 of the Code.

(2.) THE submission of Shri Sethi is that on 6.7.1993, no instructions were pleaded by the learned counsel for appellant defendant before the trial Court and thereafter on 17.9.1993, after recording evidence, ex parte decree was granted against him. But in September, 1996, he came to know about the passing of the ex parte decree when, he received the notice in execution. His further submission was that on 6.7.1993, before pleading no instructions, the advocate neither gave any notice nor any intimation nor informed about pleading no instructions on behalf of the defendant; whereas he had engaged the services of the Advocate and it was the duty of the Advocate to give notice and to inform before pleading no instructions and thereafter also. He further argued that an application for setting aside decree along with an application under section 5 of the Limitation Act for condonation of delay was filed after getting knowledge, but the Court below, by order dated 12.4.1999, rejected the application without considering the bona fides of the appellant defendant as well as the fact that the counsel had not given' any notice before pleading no instructions and has also not given any intimation thereafter to the appellant defendant.

(3.) IN the miscellaneous civil case, evidence of Advocate Shri K.G. Chandre was also not recorded and he was also not examined. The trial Court has also rejected the application on the ground that the same has been filed after 3 years 13 days and that too is barred by time. As per the case of the defendant himself, the notice of execution was served on the father of the applicant on 27.8.1996 but he filed this application for setting aside ex parte decree from the date of knowledge on 30.9.1996 which is also barred by time and no sufficient explanation has been offered on behalf of the defendant about this late filing and rejected the application as the appellant defendant has failed to make out a case either for condonation of delay or for setting aside ex parte decree.