BHAGWATIDEVI ACHARYA Vs. STATE BANK OF INDORE

JUDGEMENT

(1.) This Misc. Appeal under Order 43, Rule 1 of the Code of Civil Procedure arises out of the order dated 23-11-1998, passed by Addl. District Judge, Biaora, in M.J.C. No. 2/97, dismissing appellants' application under Order 9, Rule 13 of Civil Procedure Code to set aside preliminary decree dated 21-12-1993, and final decree dated 27.3.1997, passed ex-parte against late Krishnadas Acharya, in Civil Suit No. 3-B/92.

(2.) The suit giving rise to this appeal was filed by respondent No. 1, the State Bank of Indore against late Krishnadas Acharya and five others for recovery of loan and sale of mortgaged property. Late Krishnadas Acharya was arrayed as defendant No. 4 in the suit: He and defendant Nos. 5 and 6 Vishnudas and Shivnarayan were impleaded as guarantors for the loan in question which according to the plaintiff was raised by respondent No. 2, M/s.Shakti Cables and Wires which was arrayed as defendant No. 1. Respondent No.

(3.) Smt. Sadhna Acharya and No. 4, Durgadas Acharya, the wife and husband, are partners of the said firm and were arrayed as defendant Nos. 2 and 3 in the suit. Durgadas Acharya is the son of late Krishnadas Acharya. 3. The suit was originally instituted and prosecuted in the Court of District Judge, Rajgarh. The defendant Nos.1 and 3 (the respondent Nos. 2 and 4 herein) remained ex pane while other defendants including late Krishnadas Acharya put in their appearance and filed written statements through their Counsel. On 24-4-1992, the case was received on transfer in the Court of Addl. District Judge, Camp Biaora, a Sub-Divisional Headquarter of District Rajgarh. The transferee Court on 24-4-1992 directed for issuance of notice to defendant Nos. 2.4, 5 and 6. No notices were, however, issued to defendants No. 1 and 3 who were ex-parte since before. The respondent defendant Nos. 5 and 6 alone appeared before the transferee Court. Defendant-respondent No. 3, Smt. Sadhna Acharya and defendant No. 4, late Krishnadas Acharya did not appear and the Court below after holding that the notices have been served duly on them proceeded ex-parte against them. Ultimately a preliminary decree was passed on 21-12- 1993. An application to set aside this preliminary decree was made by late Krishnadas Acharya on 21-12-1993 but the same was dismissed by the Trial Court on the ground that an application under Order 9, Rule 13 of Civil Procedure Code to set aside a preliminary decree was not maintainable. Krishnadas Acharya died on 28-12-1994. Final decree in the suit was passed on 27.3,1997.