SENSPORT INTERNATIONAL Vs. A D J

JUDGEMENT

(1.) SLEEPING over his rights, confronted with an execution proceeding, the appellant challenged the ex parte order after a lapse of seven years, hoping to put back the historical clock to the year 1999. Such a belated effort has been rejected by the Addl. District Judge No. 1, Alwar vide his order dated 11.5.2006. Hence this appeal before us.

(2.) THE brief facts of the case are that respondent -plaintiff No. 2 M/s. Modern Syntex (India) Ltd. entered into a contract with respondent -defendant No. 1 Mourne Clothing Co. Ltd. for supplying cloth to the respondent No. 1. The appellant was actively involved in the procurement of the cloth and the payment thereof to the respondent -plaintiff. Thus, the appellant acted as an agent of the respondent defendant No. 1. Till 1994 the payments were regularly made. However, thereafter certain disputes arose between the parties with regard to the quality of the cloth being supplied. Despite the fact that subsequently the quality of the cloth was found to be as per the specifications, the payment for the next six transactions were withheld by the respondent -defendant No. 1 and the appellant. Therefore, the respondent -plaintiffs filed a civil suit against respondent -defendant No. 1 and the appellant, who was arrayed as defendant No. 2 on 20.5.1996. Between the years 1996 to 1999, three different Counsel appeared before the Court on behalf of the appellant, namely Shri Satyadev Sharma, Shri Vinay Sharma and Shri S.N. Gupta. It is pertinent to point out that Shri Satyadev Sharma filed his Vakalatnama on behalf of both the defendants in the case. The reply on behalf of appellant was also filed. Subsequently, the matter was listed for framing of issues on two occasions, namely, on 19.11.1998 and 11.3.1999. It seems that on the next date on 8.4.1999, no Counsel appeared on behalf of the appellant. On 14.5.1999 i.e. on the next date, again no one appeared on behalf of the appellant. Therefore, the learned Judge had no option but to proceed ex parte against the appellant. From 14.5.1999 to 22.11.1999 no one appeared on behalf of the appellant and the proceedings continued ex parte. However, on the next date on 3.12.1999 a brief -holder Advocate did appear on behalf of the appellant. But no application for setting aside the ex parte proceedings was moved. The ex parte proceedings continued from 14.12.1999 till 16.1.2003, but it seems that no one contested the matter on behalf of the appellant. And no one moved an application for setting aside the exparte order dated 14.5.1999. Eventually on 16.1.2003 the judgment and decree were passed exparte against the defendants. It is the case of the appellant that when the execution proceedings were initiated against it in the Noida Court, it was informed by someone from the Noida Court about the said proceedings. According to the appellant, it rushed to Alwar and obtained a certified copy of the case proceedings and the orders on 20.3.2006 which were given to it on 21.3.2006. Thereafter, the appellant moved an application under Order 9 Rule 13 and Section 151, C.P.C., praying for setting the said ex parte order dated 16.1.2003. However, vide order dated 11.5.2006 the learned Judge dismissed the said application.

(3.) ON the other hand, Mr. Paras Kuhad, learned Counsel for respondent -plaintiff, has strenuously argued that Order 9 of C.P.C. deals with the consequence of the non -appearance of the parties. While Order 9 Rule 7 deals with setting aside of an order during the pendency of the proceedings, Order 9 Rule 13 deals with the setting aside of the ex parte decree against the defendant. He has further submitted that the present case is one under Order 9 Rule 13 and not under Order 9 Rule 7, C.P.C. Furthermore according to him, Article 128 of the Limitation Act applies to Order 9 Rule 13 of C.P.C. According to the said Article, the period of limitation starts from the date of the decree and not from the date of the knowledge of the defendant. According to the learned Counsel, the application for setting aside the ex parte decree was submitted hopelessly beyond the period of limitation. The said application, in fact, should have been rejected on this ground alone.