(1.) This first appeal under Section 96 of the Code of Civil Procedure has been preferred by the defendant against the judgment and decree passed in exercise of powers under Order 8 Rule 10 of the Code of Civil Procedure on 29.09.1997 by the Court of 4 th Additional District Judge, Bhind in Civil Suit No.71-A/1995.
(2.) Briefly stated relevant facts are that the plaintiff/respondent instituted a suit for recovery of Rs.79,810/- against the appellant and one Vinod Singh with allegations that defendant No.1 obtained a loan of Rs.47,664/- on 11.01.1980 from the plaintiff for the purchase of tracker vehicle. Defendant No.2 also put his signatures on the loan application. Father of defendant No.2 furnished guarantee for re-payment of loan and interest. On account of death of father, defendant No.2 became liable as guarantor. Documents were got duly executed. Appellant also created equitable mortgage for security of loan. Repayment was not made by defendant No.1 of loan amount and interest. Hence, plaintiff issued a demand notice, which was not responded to. Thus, suit for recovery of Rs.79,810/- was instituted against the defendant/appellant as well as Vinod Singh. On account of death of Vinod Singh, his name was deleted under the order of the trial Court on 05.07.1997.
(3.) Defendant No.1, despite service of summons, remained absent. Ex-parte proceedings were drawn against him on 08.11.1995. Summons was issued to defendant No.2, who was reported dead by the Process Server. Plaintiff-bank did not submit any application to substitute legal representatives for the deceased defendant No.2, on the ground that particulars of legal representatives were not traceable. Accordingly, a prayer was made for deletion of name of defendant No.2, which was accepted on 05.07.1997. Learned trial Judge, thereafter, fixed the case on 25.07.1997 for ex-parte evidence of the plaintiff. Evidence of the plaintiff was not present on 25.07.1997. Again the case was adjourned to 29.09.1997 for plaintiff's ex-parte evidence. On such date, learned trial Judge exercising powers under Order 8 Rule 10 of the CPC granted a decree in favour of plaintiff-bank against the defendant/appellant. Learned trial Judge further directed that in case if the payment is not made by the defendant/appellant within two months, plaintiff would be entitled to recover the amount from auction of the mortgaged property. Aggrieved by the same, the defendant has preferred the present appeal.