JAYANTA SARMA Vs. MD. ABUL HUSSAIN

JUDGEMENT

(1.) This is defendant's appeal against the order dated 28-1-82 passed by the learned Assistant District Judge No. 1, Gauhati, rejecting the application under Rule 13 of Order IX of the Code of Civil Procedure, hereafter the 'Code'.

(2.) The plaintiff-respondent had filed the suit on the basis of 'pro-note' for recovery of money against the defendant-appellant. The suit was fixed for hearing on 2-1-81. The learned Counsel for the defendant was present but went away and ex parte decree was passed on 3-1-81. The learned Counsel for the defendant on 3-2-81 moved an application for setting aside the ex parte decree with an application for condonation of delay of two days in filing the application. The ground for setting aside the ex parte decree was that on 2-1-81 when the learned Counsel (Shri J.P. Sarma) had come to the court he was told by the plaintiff that he would seek adjournment and thereupon the learned Counsel for the defendant had gone away, but on 9-1-81 he came to know that the suit had been decreed ex parte on 3-1-81. It was further stated that the learned Counsel for the defendant fell sick and could not move the application in time, which was moved on 3-2-81. The learned Court below by the impugned order rejected the application on the grounds, firstly that the learned Counsel after the suit was decreed ex parte, had no locus standi to file the application under Order IX, Rule 13 of the Code or under Sec. 5 of the Limitation Act, and secondly that no sufficient ground had been made out for setting aside the ex parte decree.

(3.) Aggrieved, the defendant has come in appeal and Shri J.P. Sarma, learned Counsel for the appellant, has submitted that the application for setting aside the ex parte decree had been erroneously rejected, in that the vies, taken by the court below that after passing the ex parte decree, he (Shri J.P. Sarma) had no locus standi to move the application, was erroneous and that the learned Counsel was present on 2-1-81 and had gone away only after the plaintiff had told him that he would seek adjournment and hence for reasons of the counsel, the party, i.e. the defendant should not suffer. Shri Sarma has accordingly submitted that there was sufficient ground for setting aside the ex parte decree but the court below had erroneously rejected the application.