SITARAM MODI Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) A short but interesting, important and informative question of law arises in the present revision petition which has been filed by a defendant. The pertinent question of law which arises far decision is as to whether an application under Order 9 rule 13 of the civil Procedure Code is maintainable, if a judgement has been pronounced within the meaning of ambit of Order 8 Rule 10 CPC resulting into a decree. Another limb of question is as to what is the true and correct meaning of exparte decree and whether a decree which has been passed after service of summons upon the defendant in the absence of a written statement can be described to be exparte decree or not.

(2.) In order to appreciate the aforementioned question of law it is necessary to have a look at the facts of the case. The brief facts are that a Money suit No. 47/89 was filed by the plaintiff Bank against two defendants on 15th May'89. Since no written statement was filed, the trial court on 13.7.90 pronounced the judgment after declining the adjournment. The presence of both the counsels i.e. defendant No. 1 and 2 was noticed and it was specifically observed that the suit was being decreed against both the defendants jointly and severally under Order VIII Rule 10 of the CPC with costs. The defendant-petitioner who was a guarantor filed an application under Order 9 Rule 13 of the CPC for setting aside the decree by describing the same as an exparte. The application was dismissed by the order of the trial court dated 15.5.93 which was registered as Misc(J) Case No.35/90 . It has been found in the order that there is no sufficient cause for setting aside the decree. An appeal was carried before the first appellate court which was dismissed being Misc. Appeal No. 4/93. The petitioner filed the present revision petition. It was argued before the learned single Judge that the decree passed under Order 8 Rule 10 of CPC being exparte, an application under Order 9 Rule 1.3 of CPC was maintainable. It was further argued that both the remedies i.e. one an application under Order 9 Rule 13 and the remedy of appeal being mutually exclusive, there was no bar in resorting to both the remedies simultaneously, in support of the proposition of law which was canvassed before the learned single Judge, a reported decision of this court in (1993) 2 GLR 327 Ratanalal Sarqf and Another -Vs- Mahabir Prasad Agarwalla and others was cited. The learned single jjudge felt doubtful about the correctness of law laid down in Ratanlal Saraf s case (Supra) referred the matter to Division Bench. This is how the case has been placed before us. Before noticing the arguments, it is necesiary to read the two provisions which are reproduced below:-

(3.) Mr. G. N. Sahewalla, learned counsel petitioner has argued that where exparte decree was passed under Order 8 Rule 10 on the sole ground that the written statement was not filed, the very fact that a right of appeal is available against exparte decree, the same would be no reason to hold that an application under Order 9 Rule 13 of CPC was not maintainable, in support of the proposition of law Mr. Sahewalla, has relied upon the following decisions of various High Courts:- ft) AIR 1988 Kerala 304 A.K. P. Haridas - Vs- V.A. Madhavi Amma & others. (ii) AIR 1988 Kerala 161 Ms. M. Manick Peter & Ors.-Vs- K. Surendranathan. (iii) AIR 1981 Madras 258 (N. Jayaraman -Vs-M/s. Glaxo Laboratories Ltd. Madras (iv) AIR 1985 Karnataka 77 (M/s.Kuvarp Industries, Bangalore & Anr-Vs- State Bank of Mysore) (v) AIR 1991 A.P 69 Innovation Apartments Flat Owners Association, Secundrabad- Vs- M/s. Innovation Associate, Secundrabad.