LAWS(ORI)-1987-3-1

JAIDURGA INDUSTRIES JEYPORE Vs. UNION BANK OF INDIA

Decided On March 17, 1987
JAIDURGA INDUSTRIES, JEYPORE. Appellant
V/S
UNION BANK OF INDIA Respondents

JUDGEMENT

(1.) Being aggrieved by the order of the trial Court dt. 8-12-83 rejecting their application to set aside the ex parte decree, the appellants have filed this appeal under O.43, R.1, Civil P.C.

(2.) The respondent filed Title Suit No. 47 of 1982 in the Court of the Subordinate Judge, Jeypore for realisation of the mortgage money from the appellants. In the said suit the appellants were granted time till 10-12-82 as the last chance to file their written statement. On that day, since they failed to file the written statement, they were set ex parte and the suit was posted to 15-12-82 for ex parte hearing. The fifteenth of December having been declared a holiday the suit was taken up on 16-12-82 and it was adjourned to 3-1-83 on the application filed by the plaintiff. On 3-1-83 ex parte hearing of the suit was taken up and decree was passed on 5-1-83. Thereafter the appellants filed the application under O.9, R.13, C.P.C. for setting aside the ex parte decree taking the plea that they were unable to take steps in the suit due to their illness on 3-1-83. The application was resisted by the respondent. On behalf of the appellants two witnesses were examined one G. Sankar Rao, proprietor of the firm and the doctor who treated the appellants for their ailment. It is pertinent to mention here that appellant 2 is the wife of G. Sankar Rao, proprietor of the appellant 1 firm. The trial Court refused to accept the plea of illness taker by the appellants and accordingly dismissed the application under O.9, R.13, C.P.C.

(3.) Shri S.S. Swain, learned counsel for the appellants contended that on the facts and circumstances established from the evidence adduced in the case, the trial Court clearly erred in not accepting the plea of illness taken by the appellants. Shri K.T. Rao, the learned counsel for the respondent, on the other hand, supported the impugned order.