JAIN AND ASSOCIATES Vs. NANDITA ACHARJEE

JUDGEMENT

(1.) In this miscellaneous appeal, the appellant is questioning the validity of the ex-parte decree dated 31-5-2010 passed by the learned Civil Judge, Nagaon in Money Suit No. 6 of 1996.

(2.) The appellant is the second defendant in the suit as well as the power of attorney holder for all the defendants. The case of the appellant is that he filed an application under Order 9, Rule 13 of the Code of Civil Procedure (CPC) for vacating the impugned ex-parte judgement and decree passed against the defendants on the ground that they had not received the summons from the trial court. The original defendant No. 2 had engaged one T.R. Nanda, Advocate to conduct their case, but the said defendant died soon thereafter and further proceeding in suit was accordingly kept in abeyance on and after 11-9-2006 till the receipt of some original documents to be produced by the respondent. The said T.R. Nandi also died in the year 2007. The appellants were not aware of the death of their counsel and were always under impression that their counsel would take appropriate action to prosecute their case and would inform them as and when the suit would be taken up for hearing. They came to know on or about 1-8-2013 about the ex-parte decree when they received the application for attachment of their movable properties filed by the respondent in Money Execution Case No. 12 of 2010 in the Court of the Civil Judge (Senior Division) at Alipore.

(3.) It is the further case of the appellant that they immediately engaged Mr. Promode Kothari, Advocate for obtaining a certified copy of the decree and for filing of an application under Order 9, Rule 13, CPC to set aside the same. On obtaining the certified copy of the ex-parte decree, they were surprised to learn that on re-opening of the case on 22-1-2008, notices were said to have been issued to them for their appearance, but they were, however, recorded to have beeen absent despite several attempts purportedly made by the respondent to secure their appearance. According to the appellants, no such intimations were ever received by them at any time. It is their further case that they also came to know from the order sheets that paper publication of the summons was made in the Sentinel newspaper, which is locally circulated in Assam, whereas they are residents of Kolkata. As they were not aware of the summons or of the paper publication of the summons addressed to them, they could not adduce evidence to substantiate their case or, for that matter, contest the suit in any manner. Moreover, the impugned judgment and decree is a nullity against the defendant No. 3 inasmuch as the decree was passed on 19-5-2010 his death which took place on 5-10-2007. The impugned decree was eventually passed on 19-5-2010 in their absence declaring that the respondent was entitled to recover Rs. 48,88,222/- with interest @ 6% per annum from the date of institution of the suit. The appellants, therefore, filed an application under Order 9, Rule 13 CPC for setting aside the ex-parte decree, but the application was dismissed on the ground that the provision of Order 5, Rule 20(2), CPC was complied with and summons were deemed to have been properly served upon them through paper publication in the Kolkata edition of "The Statesman" on 26-11-2009.