GEMINI PVT LTD Vs. INDUSTRIAL PROMOTION

JUDGEMENT

(1.) THIS is an application under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 (for short "CPC") praying for setting aside the order dated 15.12.1997 passed by the Civil Judge (Senior Division), First Court, Cuttack in Misc. Case No. 527 of 1995 arising out of Execution Case No. 176 of 1989 by which the objection filed by the opposite party under Order 21 Rule 58 CPC for vacating the attachment order dated 1.3.1990 in respect of a sum of Rs. 3,43,554.00 has been allowed and the attached money has been released.

(2.) THE petitioner filed Money Suit No. 173 of 1985 for recovery of a sum of Rs. 5,10,809.70 towards outstanding commission charges from the defendants M/s. Mysore Machinery Manufacturer Ltd. and five others including defendant No. 4, the Orissa State Financial Corporation, who was the guarantor for the loanees. The Opposite party, Industrial Promotion and Investment Corporation of Orissa Ltd. (for short "IPICOL"), was also a guarantor for the loanees, but was not impleaded as a defendant in the suit. The petitioner was the sole selling agent of defendant No. 1 in Orissa for procuring orders for powerlooms and was entitled to get commission at the rate of 12.5 per cent of the basic sale price. The suit of the plaintiff was decreed on 28.4.1989 ex -parte against defendant Nos. 1, 2 and 3 with costs; against proforma defendant Nos. 5 and 6 without costs; and against defendant No. 4, a co -financier of defendant Nos. 5 and 6 on contest without costs, directing them to pay Rs. 5, 10, 809.70 with pendente lite and future interests at the rate of 12 per cent per annum.

(3.) SHRI D. P. Sarangi, learned counsel for the petitioner, and Miss Deepali Mohapatra, learned counsel for the opposite party, were heard at length. While Shri Sarangi strenuously urged for setting aside the impugned order, Miss Mohapatra vehemently opposed the same.