(1.) THIS is an appeal under Order 43 Rule I (d) of the Code of Civil Procedure against the order dated 17.12.98, refusing to set aside the ex parte decree, passed by the District Judge, Mandla, in MJC No. 22/96.
(2.) IT appears, that by judgment and decree dated 25.7.96, the suit of the respondent was decreed ex parte against the appellant. The order sheet disclosed that on 10.7.96 the appellant or his counsel did not appear before the Court and the evidence of the respondent was partly recorded and, thereafter, the case was adjourned to 15.7.96 for examination of remaining witnesses of the respondent. On 16.7.96, the case was closed by the respondent without examining any witness. However, the appellant remained ex parte on that date. Then on 17.7.96 ex parte arguments were heard and on 25.7.96 ex parte decree was passed against the appellant for recovery of an amount of Rupees 61,044/ - with interest at the rate of Rs. 6% per annum from 8.7.93.
(3.) HAVING heard the learned counsel for the parties and after going through the record of the case, it is found that the application under Order 9 Rule 13 of the Code of Civil Procedure was in respect of non -appearance of the appellant in Court, which was supported by an affidavit of the appellant as well as that of the clerk of the counsel. These two affidavits asserted that on 25.7.96, Shri S.N. Bajpai, counsel for the appellant was in jail. Thereafter, in evidence, the appellant asserted that he was not appearing in the Court as his counsel was appearing. Thereafter, subsequently, he came to know that his case was dismissed. The evidence of Rajendra Prajapati, the clerk of Shri S.N. Bajpai, Advocate, stated that Shri Bajpai was in jail and, therefore, the case proceeded ex parte against the appellant as nobody appeared on his behalf. The counsel was in judicial custody prior to 9.7.96 and he had informed a relative of the appellant that the case was dismissed on 9.7.96.