KANHU CHARAN Vs. BANAMBAR PRADHAN

JUDGEMENT

(1.) Plaintiffs are the petitioners challenging the order of the Additional Subordinate Judge, Puri, allowing an application filed under O.9, R.13 of the Code of Civil Procedure (hereinafter referred to as the "Code").

(2.) O.S.No.10/95 of 1981/79-I was decreed ex parte on 30-3-1981 and an application to set aside the said ex parte judgment and decree was filed under O.9, R.13 of the Code on 12-7-1982. In the said application, defendant No.1 asserted that the suit was originally pending in the Court of the Subordinate Judge, Puri, but it was transferred to the Court of the Additional Subordinate Judge on 5-2-1981, but no notice of such transfer was given to the defendants, nor the defendants' counsel intimated the said fact. As a result, the defendants has no knowledge about the said transfer. Consequently, the defendants were set ex parte on 30-3-1981 and the suit was decreed ex parte. It was further asserted by the defendants that on account of mental imbalance, the defendants could not appear and take part in the proceedings and, therefore, their absence was not wilful.

(3.) The plaintiffs denied the assertions made in the application for restoration and contended that the defendants were fully aware about the transfer of the suit from the file of the Subordinate Judge to that of the Additional Subordinate Judge and defendant No.1 was present and has filed hazira on several subsequent dates before the defendants were set ex parte on 30-3-1981. Further, the defendants' default was wilful and merely to prolong the litigation. The plaintiffs also averred that the application for restoration was barred by limitation.