RAMSARUP PRASAD Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) This is a miscellaneous appeal by the defendants. Their application in the court below for setting aside an ex parte decree filed under the provisions of Rule 13 of Order 9 of the Code of Civil Procedure (briefly called the Code) has been dismissed by the learned Additional Subordinate Judge on the ground that the same was not maintainable as such.

(2.) A title mortgage suit was filed by the respondent against the appellants. They had appeared in the suit and had filed a written statement. Ultimately the suit was posted for hearing on 8-4-78, However, on the said date they applied for time on the ground of illness of one of them. Time was allowed and the suit was adjourned to 15-4-78. On this day also, adjournment was prayed for on the same ground. The court below, how- ever, rejected the time petition and then the plaintiff opened its case and started evidence, The Junior lawyer of the appellants, placed in this situation, then cross-examined the witnesses who were, of course, formal in nature. The case was then adjourned to 17-4-1978 and on this day also the appellants applied for time and it was again rejected. Some witnesses of the plaintiff were again examined on this date but the appellants did not participate at all. The suit was then adjourned to 20-4-78, for argument and after hearing argument ex parte the court below passed a decree on 28-4-78. It is in these circumstances that an application under Rule 13 of Order 9 of the Code was filed by the appellants making out a case for their absence from the suit for setting aside the decree passed therein.

(3.) In the rejoinder the plaintiff, inter alia, took a point that in view of the fact that on 15-4-78, its witnesses were cross-examined, the provisions of Order 9 Rule 13 were not applicable and when the case was taken up for consideration, this plea was pressed as a preliminary issue and the learned Additional Subordinate, Judge by the impugned order, has accepted the preliminary objection and has held that the provisions of Order 9, Rule 13 of the Code were not attracted in the circumstances mentioned above and, therefore, the application was not maintainable.