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2001 DIGILAW 524 (JHR)

Sarfuddin Ansari v. State Bank Of India, Ranchi

2001-07-31

GURUSHARAN SHARMA

body2001
JUDGMENT Gurusharan Sharma, J. 1. State Bank of India, Upper Bazar Branch. Kutchery Road, Ranchi. filed Mortgage Suit No. 331 of 1985 for grant of mortgage decree. 2. Sirajuddin Ansari. sole proprietor of M/s. Sabina Bricks applied for sanction of cash-credit loan facility for his Small Scale Unit, which was sanctioned by the Bank on 30.11.1981 to the limit of Rs. 70,000/-. 3. Sarfuddin Ansari and Safaur Ansari were the guarantors for the aforesaid loan advance and had also mortgaged their 3.15 acres land, detailed in Schedule A to the plaint. 4. Sirajuddin Ansari died unmarried PS such only two guarantors were made defendants in the suit, which was decreed ex-parte on 4.3.1989. 5. On 21.12.1992 one of the guarantors, namely. Sarfuddin Ansari filed Misc. Case No. 82 of 1992 under Order IX, Rule 13 of the Civil Prpcedure Code for setting aside the ex-parte decree, which was dismissed by impugned order dated 18.11.1994. 6. The record of the suit reveals that summons of the suit were served on defendant No. 1 under registered cover, on refusal, however, Postal Peon was not examined. Simultaneously, summons under registered cover was also served on defendant No. 2, on refusal. Postal Acknowledgement Receipts as well as Postal Registration Receipts respectively were marked as Exhibits B, B/1, C and C/1. Exhibits A and A/1 were endorsements of refusal of summons by both defendants. 7. Defendant No. 2 neither became co-applicant along with defendant No. 1 in Misc. Case No. 82 of 1992, nor took any step independently. However, defendant No. 2 examined himself in the present Misc. Case as AW 5 and categorically admitted in his deposition that, in fact, summons of the suit were sent to him under registered cover, but he refused to accept the same. 8. Court below on the basis of the evidence of AW 5 observed that since service of summons under registered cover was done simultaneously on defendants 1 and 2, which was admitted by defendant No. 2, it was served on defendant No. 1 also. 9. Another important aspect of the matter was explanation of long delay of about two years and nine months in filing application under Order IX. Rule 13 of Civil Procedure Code, ex-parte decree was passed on 4.3.1989 and Misc. Case was filed on 21.12.1992. 9. Another important aspect of the matter was explanation of long delay of about two years and nine months in filing application under Order IX. Rule 13 of Civil Procedure Code, ex-parte decree was passed on 4.3.1989 and Misc. Case was filed on 21.12.1992. Neither any application for condonation of delay was filed nor any evidence was adduced on behalf of applicant explata-ing the said delay. 10. Applicant pleaded that when he appeared in the suit on 13.11.1992, he came to know that it was already decreed ex-parte. Nothing has been said as to how he filed his appearance in November. 1992 in the suit, which was filed in 1985. It was also not disclosed as to how and from whom he got information about the said suit. 11. Exhibits A. B and C series proved service of summons of the suit upon the defendants, which was also admitted by opposite party No. 2, who was co- defendant in the suit along with the applicant. 12. In such circumstance, Court below rightly dismissed the Misc. Case No. 82 of 1992 filed under Order IX Rule 13 of the Civil Procedure Code. 1 find no reason to interfere with the said order dated 18.11.1994. 13. In the result, this appeal is dismissed, but without costs. Let the lower Court records be sent down to the Court below. 14. Appeal dismissed.