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Madhya Pradesh High Court · body

2005 DIGILAW 85 (MP)

AGRO FEB v. BANK OF INDIA

2005-01-17

N.K.MODY

body2005
Judgment ( 1. ) BEING aggrieved by the order dated 24-4-2000 passed in MJC No. 6/99, by VIIIth Add1. District Judge, Bhopal, whereby the application filed under order IX Rule 13, CPC for setting aside the judgment and decree dated 12-3-96 passed in Civil Suit No. 4-A/87 by IVth Addl. Judge to the Court of District judge, Bhopal, has been dismissed, the present appeal has been filed. ( 2. ) SHORT facts of the case are that the respondent No. 1 filed a suit against the appellant and respondent No. 2 for realisation of Rs. 2,26,602. 42 which was registered as Civil Suit No. 4-A/87. In the aforesaid case appellant appeared and submitted his written statement. Lateron, the case proceeded ex parte against the appellant w. e. f. 29-4-94 as the appellant and his Counsel remained absent. Thereafter, on 12-3-96 the case was decreed ex parte with a direction to pay a sum of Rs. 2,26,602. 42 along with interest @ 12% p. a. On 16-12-98, the appellant moved an application under Order IX Rule 13, CPC, alleging that the appellant was not well right from the year 1994, therefore, he could not appear before the Court and the case proceeded in ex parte. The application was supported by the affidavit along with medical certificates. ( 3. ) THE learned Trial Court dismissed the application on the ground that the application filed by the appellant is barred by limitation. ( 4. ) LEARNED Counsel for the appellant submits that since the application was filed within limitation from the date of knowledge of the ex parte judgment and decree therefore, there was no necessity to move an application for condonation of delay. Learned Counsel for the appellant submits that the learned Court below ought to have held enquiry before dismissing the application. Learned Counsel for the appellant has placed reliance on a decision reported in (2001) 6 SCC 176 , M. K. Prasad Vs. P. Arumugam, where in the honble Supreme Court has observed that even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigating him as an irresponsible litigant. P. Arumugam, where in the honble Supreme Court has observed that even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigating him as an irresponsible litigant. He should have been more vigilant but his failure to adopt extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. The inconvenience caused to the respondent for the delay on account of the applicant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. ( 5. ) SMT. Amit Ruprah, learned Counsel appearing on behalf of re-spondent No. 1, has vehemently opposed the relief sought for by the appellant and submits that intentionally the application is filed by the appellant after an inordinate delay so that the decretal amount can not be recovered. She further submits that it is a public money which is involved. ( 6. ) CONSIDERING the facts and circumstances of these case, and the law laid down by the Honble Supreme Court, this appeal is allowed and the impugned order dated 24-4-2000 passed in M. J. C. No. 6/99 by VIIIth Add1. Judge to the Court of District Judge, Bhopal, is set aside, subject to the appellant depositing a sum of Rs. 25,000/- with the respondent No. 1 Bank within a period of one month and also pay a cost of Rs. 1000/- to the other side. After making compliance, the learned Court below shall dispose of the application after giving an opportunity to the appellant for filing an application for condonation of delay. Till disposal of the matter finally, the appellant shall maintain status-quo as regards to the property and shall not dispose of any property. M. J. C. No. 6/99 shall be disposed of within a period of 3 months and in the case of the learned court below allows the application, then the Civil Suit No. 4-A/87, shall also be disposed of finally within a year. Parties are directed to remain present before the Court below on 21-2-2005. No order as to costs. M. J. C. No. 6/99 shall be disposed of within a period of 3 months and in the case of the learned court below allows the application, then the Civil Suit No. 4-A/87, shall also be disposed of finally within a year. Parties are directed to remain present before the Court below on 21-2-2005. No order as to costs. C. C. as per rules. Misc. Appeal allowed.