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2004 DIGILAW 7 (JK)

Davinder Paul v. J&K Bank Ltd.

2004-02-05

PERMOD KOHLI

body2004
This appeal is directed against order dated 10-10-2002 passed by the Additional District Judge (Bank Cases) Jammu whereby an application filed by the appellant-applicant under Order 9 Rule 13 of Code of Civil Procedure for setting aside of exparte decree passed by the Court has been dismissed. 2. From the perusal of the order under appeal, it appears that the application of applicant-appellant has been dismissed for non-appearance of the applicant-appellant and his counsel as also for non-filing of the certified copy of the judgment and decree-sheet. 3. Mr Manhas, learned counsel appearing for the appellant has submitted that the decree passed by the Court is not sustainable in law as the suit had abated on account of the death of the principal borrower, therefore, the trial Court was required to set aside the exparte decree on that score alone. He has also tried to impress upon the Court that the impugned order dismissing the application for non-filing of the certified copy of the judgment and decree-sheet sought to be set aside is against law. There is force in the contention of the learned counsel as far as this aspect of the matter is concerned. There is no provision under the Civil Procedure Code or for that matter under any other law which imposes an obligation upon the applicant to file certified copy of the judgment and decree-sheet passed exparte for succeeding in application under Order 9 Rule 13 CPC. Though this part of the judgment is not in accordance with law, however, the application has been dismissed primarily for non-appearance of the applicant-appellant and his counsel. With a view to seek the indulgence of the Court, the applicant-appellant was required to have shown sufficient cause for non-appearance on the date of dismissal of the application. There is not even a whisper in the memo of appeal regarding the non- appearance of the applicant-appellant on the date of dismissal of the application. In absence of there being any averment, it is not possible to appreciate whether there was sufficient cause for non-appearance of the appellant-applicant or not. Even if the order of dismissal on the ground of non-filing of certified copy is not sustainable, this Court has no option but to up-hold the order impugned as there is no challenge to the dismissal order on account of non-appearance of the applicant-appellant and his counsel. 4. Mr. Even if the order of dismissal on the ground of non-filing of certified copy is not sustainable, this Court has no option but to up-hold the order impugned as there is no challenge to the dismissal order on account of non-appearance of the applicant-appellant and his counsel. 4. Mr. Manhas has relied upon AIR 1966 SC 451; AIR 2002 A.P. 12; and AIR 1992 Karnataka 108. In all these judgments the question of abatement has been decided by the Courts. The contention of Mr. Manhas that the exparte decree is not sustainable in law, cannot be accepted and considered in these proceedings. 5. In view of the above this appeal fails and is accordingly dismissed.