STATE BANK OF INDORE Vs. JASWINDER SINGH

JUDGEMENT

(1.) This revision petition, presented under Section 115 of the Civil Procedure Code (for short, 'the Code') is directed against the order dated 28.1.91 rendered by VIII Additional Judge to the Court of District Judge, Indore in MJC No. 6-A/89, thereby setting aside the ex-parte decree against the respondents.

(2.) Briefly stated, the facts of the case are that the appellant had advanced the loan to the respondent No. 1. The respondent No. 2 had become surety promising the return of the loan. On refusal to discharge the obligation, the appellant instituted the suit against the respondents for recovery of the amount, which was registered as COS No. 16-B/88. On account of absence on the date of hearing, an order to proceed ex-parte was passed and eventually ex-parte decree was passed on 18.12.88. The respondent No. 1 filed an application under Order 9 Rule 13 of the Code seeking setting aside the ex-parte decree on the ground that there was no valid service of summons on him. He contended that he acquired the knowledge of ex-parte decree for the first time on 17.1.89. He submitted the application soon thereafter on 23.1.89. The appellant resisted the application. On evaluation of the evidence, the trial Court found that summons was not duly served and as such the decree was liable to be set aside. Consequently, the trial Court set aside the ex-parte decree against respondent No. 1. In doing so, the trial Court also set aside the decree against respondent No. 2 albeit, without challenge from his side on the fulcrum that he was only a surety for debtor the respondent No. 1. The appellant had filed the execution petition for recovery of Rs. 2,30,398.80 Ps. on the basis of ex-parte decree.

(3.) Aggrieved by the aforesaid order, the appellant has preferred this appeal.