MALWA GENERAL AGENCY Vs. BANK OF INDIA

JUDGEMENT

(1.) Heard Shri D.M. Shah, learned counsel for the appellant on the question of admission.

(2.) This misc. appeal is directed against an order dated 21.12.93 passed by Vth A.D.J., Indore, in M.J.C. No. 5/87, dismissing the appellant's application under Order 9, Rule 13 Civil Procedure Code read with Section 151 C.P.C.

(3.) The respondent-Bank filed a civil suit No. 134-B/86 against the appellant for recovery of Rs. 52,813.79 paise. The appellant in his written statement submitted that during Emergency he had to remain underground and suffered loss in business. He, therefore, prayed for monthly instalment of Rs. 100/-. The case was fixed for evidence on 4.12.86 when the appellant remained absent on the ground of illness and the counsel also did not appear because of the call of strike by the All India Bar Council. The case was, therefore, taken up next day that is on 5th and in absence of the appellant and his counsel, the case proceeded ex parte. It was on 10.12.86 that an application under Order 9 Rule 7 read with Section 151 Civil Procedure Code was moved praying for setting aside the exparte order. The application was dismissed, on 16.1.87 and on 19.1.87 judgment was pronounced. The appellant again moved an application under Order 9 Rule 13 Civil Procedure Code read with Section 151 Civil Procedure Code for setting aside the ex parte decree on the ground that he was suffering from Dengu fever since 30.11.86 and he was advised for bed rest. He produced medical certificate Ex. P.1.