ORDER 1. This miscellaneous appeal is filed by the appellants/defendants under Order 43 Rule 1 of the Code of Civil Procedure against the order dated 17.10.2008 passed by the District Judge, Bilaspur in M.J.C. No. 29/2008, which in turn arises out of the judgment and decree dated 21.02.2003 passed in Misc. Civil Case No. 100/1998. 2. By the impugned order, the learned District Judge, Bilaspur dismissed the application made by the defendants No. 1 and 2/judgment debtor No. 1 and 2 under Order 9 Rule 13 of the C.P.C. and in consequence declined to set aside the final decree proceeding dt. 21.02.2003 in Civil Suit No. 5-B/1993. 3. So the short question that arise in this appeal is, whether the learned District Judge was justified in dismissing the application made by the defendants No. 1 and 2/judgment debtor No. 1 and 2 under Order 9 Rule 13 of the C.P.C.? 4. In order to appreciate the issue involved and raised by the parties to the suit, it is necessary to state relevant facts in short, infra. 5. The respondent No. 1 State Bank of India is the plaintiff/decree holder, whereas the appellants No. 1 and 2 and respondents No. 2 to 9 are the defendants 2 (ga) and (kha)/ judgment debtor. 6. The respondent No. 1 (plaintiff) filed a civil suit against the appellants and respondents No. 2 to 9, being Civil Suit No. 5-B/93 in the Court of the District Judge, Bilaspur for recovery of Rs. 4,71,798.05. Though it was a suit for recovery of the money but it was for enforcement of the mortgage, executed by the defendants in favour of the plaintiff for realization of the loan given by plaintiff to defendants. It was therefore a suit governed by the provisions of Order 34 of the Civil Procedure Code for enforcement of mortgage for realization of the outstanding loan amount by selling the mortgaged properties. The suit was contested by the defendants. 7. On 4.4.1998 the learned District Judge; Bilaspur decreed the suit and passed a preliminary decree against defendants, jointly and severally. The suit was contested by the defendants. 7. On 4.4.1998 the learned District Judge; Bilaspur decreed the suit and passed a preliminary decree against defendants, jointly and severally. The decree reads as under : ^^16- lgk;rk ,oa O;; & ifj.kkeLo:Ik] ;g okn oknh cSad ds i{k es rFkk izfroknh dzekad 1 ,oa 3 ds fo:) t;if=r fd;k tkrk gSA izfroknh dzekad 1 ,oa 3 oknh cSad dks dk;Z’khy iwath ,oa lkof/k _.k [kkrs es cdk;k jkf’k;ks ij C;kt lfgr :-4]71]798-05 dh vnk;xh gsrq la;qDr ,oa i`Fkd&i`Fkd mRrjnk;h gSA oknh cSad mijksDr jkf’k ij okn frfFk ls vnk;xh gksus rd 14 izfr’kr okf”kZd =Sekfld vUrjky ls C;kt Hkh izkIr djus dk vf/kdkjh gksxkA mDr jkf’k dh vnk;xh izfroknh dzekad&1 ,oa 3 }kjk rhu ekg dh vof/k es oknh cSad dks dh tkosA ,slk u fd;s tkus ij oknh cSad dks izfroknh dzekad&1 }kjk oknh cSad ds i{k es ca/kd j[kh xbZ laifRr xksaMikjk fLFkr nks edku] ftldk fooj.k okni= df.Mdk&8 es fn;k x;k gS fd fodz; djkdj mDr jkf’k olwy djus dk vf/kdkj gksxkA okn dk laiw.kZ ifjO;; izfroknh dzekad&1 ,oa 3 ogu djsaxsA vfHkHkkod ‘kqYd izekf.kr gksus ij lwph vuqlkj ns; gksxkA izfroknh dzekad&2 ds fof/kd mRrjkf/kdkfj;ks ds fo:) okn lO;; fujLr fd;k tkrk gSA vuqdwyr% izkjfEHkd vkKfIr ikfjr gksA^^ 8. Despite passing of the preliminary decree, the defendants did not ensure its compliance and therefore the plaintiff on 24.8.1998 filed an application for passing a final decree in terms thereof. 9. The order sheets dt. 24.8.1998 would show that the application for passing final decree was entertained by the learned District Judge and accordingly he directed issuance of notice to all the defendants of the application made by the plaintiff. The case was then adjourned, awaiting service of notice of the application on the defendants on several dates, such as 26.10.1998, 11.12.1998, 28.1.1999, 18.3.1999, 2.4.1999, 29.6.1999, 29.7.1999, 30.8.1999, 22.9.1999 and 22.10.1999. 10. The order sheet dated 22.10.1999 then records that on this date the District Judge directed issuance of fresh notice to the defendants for their appearance on 4.12.1999. The order sheet reads as under : ^^vkosnd cSd dh vksj ls Jh lq/khj vxzoky vf/koDrkA vukosnd dzekad&2 x] 2 [k] 2 l ,oa 1 vuqifLFkrA vukosnd dzekad 3 e`RkA ryokuk 3 fnuks ds Hkhrj iVkus ij vukosnd dzekad 2 x] 2 [k] ls ,oa 1 dks uksfVl Hksts tkosA izdj.k fnukad 4-12-99^^ (emphasis supplied) 11. The order sheet reads as under : ^^vkosnd cSd dh vksj ls Jh lq/khj vxzoky vf/koDrkA vukosnd dzekad&2 x] 2 [k] 2 l ,oa 1 vuqifLFkrA vukosnd dzekad 3 e`RkA ryokuk 3 fnuks ds Hkhrj iVkus ij vukosnd dzekad 2 x] 2 [k] ls ,oa 1 dks uksfVl Hksts tkosA izdj.k fnukad 4-12-99^^ (emphasis supplied) 11. The case was then adjourned for 4.12.1999. On this date it is noted that defendants are absent and further the Presiding Judge is on leave. The Court Reader thus gave a formal next date for 04.01.2000. The order sheet dated 04.12.1999 reads as under: ^^vkosnd cSad dh vksj ls Jh lq/khj vxzoky vf/koDrkA vukosnd dzekad&2 x] 2 [k] 2 l ,oa 1 vuqifLFkrA vukosnd dzekad 3 vuqifLFkrA ftyk U;k;k/kh’k egksn; vodk’k es gSA is’kh 4-1-2000^^ 12. The order sheet dated 4.1.2000 then reads as under : ^^vkosnd cSad dh vksj ls Jh lq/khj vxzoky vf/koDrkA vukosnd dzekad&2 x] 2 [k] 2 l ,oa 1 vuqifLFkrA ,d i{kh; dk;Zokgh dh xbZA vukosnd dzekad 3 vuqifLFkr@e`rA vfHkys[k ryc gksA izdj.k fnukad 8-2-2000^^ (emphasis supplied) 13. It appears and is indeed clear that on 4.1.2000 the District Judge, proceeded ex parte against the defendants (2-Ga, 2-Kha, 2-Sa and 1). 14. The proceedings thereafter continued ex parte against almost all the defendants and eventually on 21.2.2003 the final decree was passed against the defendants in the suit. 15. The final decree reads as under : ^^1- oknh] izfroknhx.k ls lq;qDr ,oa i`Fkd&i`Fkd 4]71]798-05&pkj yk[k bdgRrj gtkj lkr lkS vaBkuos :i;s ,oa ikap iSls&,oa okn fnukad ls mDr jkf’k ij 14 izfr’kr okf”kZd =Sekfld vrajky ls C;kt izkIr djus dk vf/kdkjh gksxkA 2- oknh] izfroknh dz- 1 }kjk oknh@cSad ds ikl ca/kd j[kh xbZ laifRr xksaMikjk fLFkr edku] ftldk fooj.k okni= dh df.Mdk es fn;k x;k gS] dks fodz; dj mDr jkf’k olwy djus dk vf/kdkjh gksxkA 3- izfroknhx.k Loa; dk ,oa oknh dk okn O;; ogu djsaxsA rnuqlkj vafre vkKfIr cukbZ tkosA^^ 16. It is with this background, the defendants No. 1 and 2 on 26.02.2008 filed an application under Order 9 Rule 13 of the C.P.C. being M.J.C. No. 24/2008, out of which this appeal arises, praying for setting aside of the final decree dated 21.2.2003. It is with this background, the defendants No. 1 and 2 on 26.02.2008 filed an application under Order 9 Rule 13 of the C.P.C. being M.J.C. No. 24/2008, out of which this appeal arises, praying for setting aside of the final decree dated 21.2.2003. The relief for setting aside of the ex parte decree was claimed essentially on the ground that since the defendants were not served of the notice of the application made by the plaintiff for passing a final decree and hence it was liable to be set aside under Order 9 Rule 13 ibid. In other words, it was contended that since defendants No. 1 and 2 were not served with the application for passing final decree by the plaintiff on 24.8.1998 and therefore the final decree was liable to be set aside, entitling the defendants to contest the final decree proceedings in accordance with law. It was also contended that even as per the order sheets, quoted supra, and particularly order sheet dated 4.12.1999 and 4.1.2000 would show that the defendants were asked to appear on 4.12.1999 and since on that day, the Presiding Judge was on leave and therefore they could not have been placed ex parte either on 4.12.1999 or on adjourned formal date i.e. 4.1.2000 for the reason that 4.1.2000 was not the "date of hearing" being formal one given by the Court Reader. It was thus contended that the Court committed an illegality in proceeding ex parte against the defendants on 4.1.2000, by first treating them to have been served for 4.12.1999 and secondly assuming that they were served for their appearance on 4.12.1999, yet since on that date, the Presiding Officer was on leave and case was formally adjourned to 4.1.2000 by the Court Reader, no order of ex parte could be passed on 4.1.2000 against the defendants because it was not 'the date for hearing'. 17. Plaintiff contested the application and prayed that no case whatsoever is made out for setting aside of the ex parte judgment and decree against the defendants. According to them, Firstly, the application made by the defendants under Order 9 Rule 13 of the C.P.C. was barred by limitation. Secondly, it was not filed within 30 days from the date of the knowledge because they were appearing in the suit. According to them, Firstly, the application made by the defendants under Order 9 Rule 13 of the C.P.C. was barred by limitation. Secondly, it was not filed within 30 days from the date of the knowledge because they were appearing in the suit. Thirdly, they having admitted in their evidence that they had the knowledge of the proceeding and hence there did not arise any occasion to set aside the final decree proceeding. It is essentially on these factual grounds, the application for setting aside of the final decree was contested. 18. By the impugned order, the learned District Judge dismissed the application made by the defendants under Order 9 Rule 13 of the C.P.C. and in consequence declined to set aside the ex parte decree dated 21.2.2003. It is against this order, the defendants No. 1 and 2 have felt aggrieved and filed this appeal, challenging its legality and correctness. 19. Placing reliance upon a decision in the case of Sushila Bai Vs. Ram Nihore Jagatdhari Prasad Patel 1991 MPLJ 329 , the learned counsel for the appellants contended that the Court below erred in proceeding ex parte against the defendants No. 1 and 2 on 4.12.1999 and then 4.1.2000 because on 4.12.1999 the Presiding Judge was on leave and hence Court Reader had no power to place any party ex parte except to give a formal date and secondly on 4.1.2000 i.e. the adjourned date, no notice was served on the defendants for the said date (4.1.2000) and hence on that day, they could not have been placed ex parte by the District Judge. It was contended that even otherwise no notice was served upon the two defendants of the plaintiff's application for their appearance either for 4.12.1999 or/and 4.1.2000 and hence the final decree passed by the trial Court was liable to be set aside. 20. In reply, learned counsel for the respondent No. 1 (plaintiff) contended that no interference is called for in the impugned order and the order deserves to be upheld. Learned counsel further contended that the suit being quite an old one the defendants are simply trying to avoid the execution of the decree and till date, they have not paid single paisa to plaintiff. 21. Learned counsel further contended that the suit being quite an old one the defendants are simply trying to avoid the execution of the decree and till date, they have not paid single paisa to plaintiff. 21. Having heard learned counsel for the parties and on perusal of the record of the case and keeping in view the legal position arising in the case, I am inclined to allow the appeal in part and in consequence allow the application made by the appellants/ defendants No. 1 and 2 under Order 9 Rule 13 of the CPC subject to terms, as indicated infra. 22. At the outset, I consider it apposite to take note of the law laid down by the Madhya Pradesh High Court in the case of Sushila Bail (supra), on the legal issue, involved in the case. In somewhat similar facts, alike the one involved in this case, arising in the case of Sushila Bait (supra), the question arose in Sushila Bai s easel as to whether the ex parte decree on such facts should be set aside or not. The learned Judge (R.C. Lahoti, J, as His Lordship then was, a Punie Judge of the Madhya Pradesh High Court and later became Chief Justice of India) in his subtle power of expression and distinctive style of writing, held as under : "6. At the hearing the learned counsel for the appellant submitted that the appellant, corroborated by her witness Banshidhar, had made out a case for setting aside the ex parte decree and the Court consistently with the well settled principles applicable to such cases should have taken a liberal view of the things specially when the marital status of a lady was in jeopardy and should have set aside the ex parte decree. She has more vigorously banked upon an additional fact and raised a contention, which has been unanswerable, by proceeding certified copies of order sheets dated 5-10-1987 and 20-10-1987 from the record of C.O.S. No. 17-A/87. Learned counsel submits that the record reveals that on 5-10-1987 the presiding Judge of the Court was on leave; the Court reader adjourned the case to 20-10-1987 for orders; so the date 5-10-1987 could not be deemed to be a date of hearing while she had no notice of the date 20-10-1987 on which day the Court proceeded ex parte. Learned counsel submits that the record reveals that on 5-10-1987 the presiding Judge of the Court was on leave; the Court reader adjourned the case to 20-10-1987 for orders; so the date 5-10-1987 could not be deemed to be a date of hearing while she had no notice of the date 20-10-1987 on which day the Court proceeded ex parte. Thus the direction to proceed ex parte and the consequent ex-parte proceedings are both illegal and liable to be set aside. This contention being purely legal and going to the rood of the matter has been allowed to be raised and the learned counsel for parties heard. 7. The contention finds implicit support from a decision of this Court in Mohanlal Brijlal vs. Manga, 1986 CCLJ Short Note 39. This Court held, in identical facts, that the next date having been appointed for further orders by the Court reader in the absence of the presiding officer could not be deemed to be a date fixed for hearing and the party's absence on that date did not give jurisdiction to proceed ex parte." (emphasis supplied) 23. Reading paragraphs No. 6 and 7, quoted supra, from the decision of Sushila Bai s case 1991 MPLJ 329 , it is clear that His Lordship in no uncertain terms held that on 5.10.1987 the Presiding Judge was on leave and hence Court Reader gave another date for appearance on 20.10.1987 and therefore the date i.e. 5.10.1987 cannot be held to be a "date of hearing". It was held that 20.10.1987, not being a date, given by the Court and secondly, the defendant had no notice of such date to appear and hence the Court had no jurisdiction to pass ex parte order on 20th October 1987. In other words, it was held that when the date is given by the Court Reader then it becomes a formal date and it cannot be regarded as "date of hearing" and hence it does not enable the Presiding Judge to proceed ex parte against the defendant on such date i.e. 20.10.1987. It is only when the date is fixed by the Court then it becomes a date of hearing and on such date any order can be passed including the order to place defendants ex parte in the suit. 24. It is only when the date is fixed by the Court then it becomes a date of hearing and on such date any order can be passed including the order to place defendants ex parte in the suit. 24. Applying the aforesaid principle of law to the facts of the case, it is clear that on 22.10.1999 the Court directed issuance of notice of the application made by the plaintiff to the defendants to appear on 4.12.1999. It is not in dispute that on 4.12.1999, the Presiding Officer (District Judge) was on leave and therefore the Court Reader simply adjourned the case for 4.1.2000. On 4.1.2000 the defendants were placed ex parte by the District Judge. This, in my view, in the light of the law laid down by the High Court in Sushila Bai 1991 MPLJ 329 (supra), the District Judge could not have done because 4.1.2000 was not the "date of hearing" but it was only a formal date given by the Court Reader on 4.12.1999 and secondly, the defendants had no notice of the said date (4.1.2000). 25. It is for these three reasons, the placing of the defendants ex parte on 4.1.2000 by the District Judge was without jurisdiction. 26. The matter can be examined from yet another angle. It is not clear from the order sheet dated 4.12.1999 that notices sent to the defendants were served upon them or not. At least, the order sheet dated 4.12.1999 is silent on this issue because it only records that "defendants are absent". The question of defendants being absent will arise only when they are held served of the summons. The Court was therefore required to record a finding as to whether summons sent to the defendants were served prior to 4.12.1999 or not and if served then on whom, when and whether such service could be held proper for proceeding against them ex parte on 4.1.2000 ? Nothing was recorded or indeed, could be so recorded on 4.12.1999 because the Presiding Officer was on leave on that day and the Court Reader did not have power to record anything on such issues, except to give another formal date for parties appearance, which he gave for 4.1.2000. Nothing was recorded or indeed, could be so recorded on 4.12.1999 because the Presiding Officer was on leave on that day and the Court Reader did not have power to record anything on such issues, except to give another formal date for parties appearance, which he gave for 4.1.2000. On 4.1.2000, the learned District Judge did not examine and nor recorded any finding as to whether, the defendants were served and if so when, how and whether such service can be held good or not ? and straightway proceeded to place the defendants ex parte on the basis of what was written by the Court Reader in the order sheet of 4.12.1999. In other words, neither in the order sheet of 4.12.1999 and nor of 4.1.2000, there is any discussion much less findings as to when and how the defendants were served ? 27. It is for this reason also, it is difficult for me to uphold the impugned order and instead I am inclined to hold that the defendants were not served with the application of the plaintiff made for passing a final decree. It cannot perhaps be disputed that for passing a final decree, the defendants were entitled to a notice of the application made by the plaintiff for that purpose. Indeed, the trial Court, therefore, rightly entertained the application and on 24.8.1998, directed issuance of the notice of such application to all the defendants. If the notices were not properly served in accordance with law and an ex parte order, followed with final decree, then a case for setting aside of the decree within the meaning of Order 9 Rule 13 has to be held made out in favour of the defendants. 28. I am not inclined to accept the submissions of learned counsel for the respondent/ plaintiff when he contended that the defendants had the knowledge of the proceedings and secondly the application made by the appellants under Order 9 Rule 13 was barred by time. 29. Indeed, in the light of the detailed discussion, made supra, the submissions urged by learned counsel for the respondent stands answered against them. If notice of the application for drawing final decree was not served upon the defendants in accordance with law then it becomes a case of lack of jurisdiction in passing a final decree. 29. Indeed, in the light of the detailed discussion, made supra, the submissions urged by learned counsel for the respondent stands answered against them. If notice of the application for drawing final decree was not served upon the defendants in accordance with law then it becomes a case of lack of jurisdiction in passing a final decree. In such a situation, case under Order 9 Rule 13 stands held made out. 30. Secondly, mere participating in the main suit before passing a preliminary decree cannot be pressed into service against them for holding that they also had the notice of the proceedings for drawing the final decree. In other words, merely because, the defendants were appearing in the suit prior to passing of the preliminary decree, would not mean that they also had deemed knowledge of the final decree proceedings. Had it been so, then there was no need for the trial Court to have given direction for issuance of notice of the final decree proceedings on 22.10.1999 to defendants. 31. However, I am inclined to accept one submission of learned counsel for the respondent/plaintiff when he contended that the decree should not be set aside unless some terms are imposed on defendants because despite suffering preliminary/final decree, the defendants neither filed any appeal against either and nor paid any decretal sum which is lacs and are trying to prolong the litigation on one or other grounds. There appears to be a force in this submissions and therefore in order to safeguard the interest of the plaintiff - Bank some reasonable conditions need be imposed on the defendants. 32. In my view, if the defendants are so keen to contest the final decree proceedings then they have to ensure compliance of the terms imposed by this Court. 33. Accordingly and in the light of the foregoing, it is directed to the appellants i.e. the defendants No. 1 and 2 that they shall furnish a solvent security to the satisfaction of the Court, which is seized of the civil suit for Rs. 25,00,000/- (Twenty Five Lacs) towards due satisfaction of the plaintiff's claim, if decreed eventually, because it is for this amount, the execution was levied against them by the plaintiff/decree holder on the strength of final decree. 25,00,000/- (Twenty Five Lacs) towards due satisfaction of the plaintiff's claim, if decreed eventually, because it is for this amount, the execution was levied against them by the plaintiff/decree holder on the strength of final decree. In case if solvent security is furnished within three months from today by the appellants (defendants No. 1 and 2) to the satisfaction of the Executing Court, then Court will proceed to try the civil suit on merits after affording an opportunity of being heard to the defendants and will decide the suit finally, in accordance with law, within a period of six months from the date of acceptance of the security, failing which, the Court will be free to proceed to realize the decretal amount as if the ex parte decree dated 21.2.2003 had not been set aside. 34. The appellants shall also deposit byway of cost of Rs. 25,000/- (Twenty Thousand) as a pre condition to contest the suit on merits, as indicated above for being paid to plaintiff - Bank. Failure to deposit the cost within three months from today will also disentitle the appellants to contest the civil suit on merits. 35. The appellants are also restrained from selling/alienating or in any way transferring the mortgaged/attached suit property during the pendency of the suit. It is made clear that direction to furnish security is in addition to the mortgaged or/and attached property, because as rightly argued by learned counsel for the respondent/plaintiff, the liability if eventually determined is bound to be much more of the amount than what was sought to be recovered in the execution application. In fact due to passage of time, it is considerably likely to be increased. 36. It is with these directions and conditions and subject to its compliance by the defendants, the appeal succeeds and is allowed in part. The impugned order is set aside. As a consequence, the final decree dated 21.2.2003 passed in M.C.C. No. 100/98 (Civil Suit No. 5-B/1993) stands set aside but as stated above, conditionally. 37. The parties to appear before the Execution Court on 2nd April, 2012 and file a copy of this order so that the Court concerned i.e. the District Judge, Bilaspur would be able to proceed in the suit, as directed above. 38. No cost. Appeal Partly Allowed.