ORISSA STATE FINANCIAL Vs. GOPAL CHANDRA GHOSH

JUDGEMENT

(1.) THIS Civil Revision arises out of an order of the District Judge:, Cuttack, in Misc. Case No. 79 of 1981 setting aside the final order passed under section 38(7) of the Orissa State Financial Corporation Act, ( hereinafter referred to as the 'Act'), confirming the order of attachment and directing the sale of attached property of the opposite party.

(2.) THE short facts bereft of details relevant for disposal of the case, are as follows : 'In the year 1971, the Orissa State Financial Corporation (hereinafter referred to as the 'Corporation') accommodated the opposite party with some loan as per the agreement entered into with him. On the allegation that the opposite party failed to discharge the loan, the Corporation enforced the claim under section 31 of the Act. On receipt of the application, the District Judge passed an ad interim order attaching the security for the loan and issued notice to the opposite party. After the opposite party showed cause, the District Judge proceeded to investigate into the claim of the Corporation and decided that the opposite party has the right to begin. Thereafter, the case was not heard on various dates and was ultimately posted to 1. 7. 1981 for investigation. On that day, the lawyer for the opposite party filed a petition that the case should be adjourned for fifteen days as he was on his legs in a case in the High Court. This application for adjournment was rejected on the ground that law does not permit adjournment on such a ground. Thereafter, another application was filed that the lawyer being on his legs in the High Court was not able to -examine or cross -examine the witnesses. Therefore, it was prayed that the documents by both the parties might be marked as exhibits that day and the examination and cross -examination of the witnesses might be deferred till 6. 7. 1981, which was a Monday. This was not also entertained. Although, the opposite party had the Tight to begin, without closing the case of the opposite party, the petitioner was permitted to adduce evidence. P. W. 1 was examined on behalf of the Corporation and exhibits were worked. On 4.7.1981, the Misc. Case tinder section 31 was allowed ex parte and the order of attachment was made absolute. Opposite party filed an application for setting aside the ex parte order. This petition was allowed on -28. 11. 1981 on the finding that non -participation of the Advocate on account tit being engaged in another Court should not lead a party to suffer.

(3.) LAYING stress on the second contention, Mr. Sinha submitted that once the enquiry has commenced and it has been decided that the opposite party has right to begin which is a provision under Order 18,. Rule 2r C P. C. there is no scope for applying the provisions of Order 9, Rule 13, C. P. C., any further. He has cited the decision reported in 31(1965) CLT 871 : Baidhar Behera and Ors. v. Pranabandhu Maharatha. This decision has been followed in 1971 (1) C. W. R. 338; Banchhanidhi Satpathy and Anr. v. Ghanashyam Satpathy. Both the decisions were rendered before the amendment of the C. P. C. in 1976. Order 17, Rule 3, C. P. C, before amendment read as follows : '3. Court may proceed notwithstanding either party fails to produce evidence, etc. :Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.' After amendment of Order 17, Rule 3, C. P. C. by Act 104 of 1976, those lines of decisions are of no avail. By Section 68(iii) of the Amending Act, Order 17, Rule 3 was amended. The amending section reads as follows :