JUDGMENT:

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 3.1.2007 passed by the Gauhati High Court in MC No.3398/2004 whereby and whereunder the appeal preferred by the appellants herein from a judgment and decree dated 19.4.1990 passed in Suit No.2/89, was dismissed on the premise that the appellants had not shown sufficient cause for condonation of 10 months delay in filing the said appeal.

3. The parties herein were on business terms. Appellants were to supply 22,000 Kgs. of made tea for 1984 season and 50,000 Kgs. of made tea for 1985 season to the respondent. However, the appellants supplied only 5,547 Kgs. of made tea for 1984 season and 18.245 Kgs. of made tea for 1985 season. Respondent filed a suit for a decree for a sum of Rs.5,22,69.66 paise together with interest thereon at the rate of 18% per annum. A suit was filed towards the price of the remaining amount for terminal tea supply. In paragraph 5 of the plaint, the respondent inter alia averred: “The price for other remaining quantity of made tea of 1985 season made available by the defendants to the plaintiff, could not be finalized as the same were found to have no proper market and hence were not saleable at Jorhat. At such as per instruction/discussion of the defendants, remaining qualities of 14,796 of made tea of 1985 season were sent to the tea action market at Guwahati and in Calcutta. The sale proceeds of the said tea on sale of auction markets were to be adjusted with the advances already made by the plaintiff to the deponents. After 18.04.85 the plaintiff had paid a total sum of Rs. 6,22,116 inclusive of Rs. 1,30,000 as shown in schedule A below.

4. The first Bill referred to in this appeal reads thus:

Bill dated 5.6.85 for..... Rs. 46,594.80

Bill dated 5.6.85 for...... Rs. 86,225.00

For sale proceeds on 16.8.85 Rs. 79,824.91

For sale proceeds on 26.8.85 Rs. 4,608.60

For sale proceeds on 9.9.85 Rs. 9,101.83

For sale proceeds on 19.9.85 Rs. 3766.70

For sale proceeds on 12.11.85 Rs. 2502.54

For sale proceeds on 9.12.85 Rs. 30,615.48

For sale proceeds on 23.12.85 Rs. 30,9119.62

For sale proceeds on 3.1.86 Rs. 5,945.78

For sale proceeds on 20.1.86 Rs. 9,784.28 Rs. 3,18,089.54

5. Allegedly, despite service of summons the appellants did not appear. The plaintiff- respondent made a prayer before the Trial Court that a decree be passed under order 8 Rule 10 of the CPC. He declined to examine any witness. The learned Trial Court by a judgment and order dated 19.4.1990 decreed the suit stating:

“Learned lawyer of the plaintiff side is present filing his hazira. Defendants side is absent without any step. Seen the previous orders of this Court. The suit is taken up for ex-parte hearing. Heard learned counsel for the plaintiff. He submits Court to take action under Order VIII Rule 10 of the C.P.C. and declined to examine any P.W. Hence, perused the plaint and the relevant documents submitted by the plaintiff in support of his plaint. Prima facie case is held proved in favour of the plaintiff as per plaint.

The suit is decreed on ex-parte for realization of Rs.5,22,669.66 p with costs of the suit and future interest per plaint as prayed for.”

6. Appellants contended that they were not aware of passing of the said decree. In the year 1997, an execution case was filed. Summons in the said execution case were served upon the appellants. One Shri Tapan Gogoi was appointed as an Advocate in the said execution case. However, no further steps were taken. The execution proceeding was stayed on 15.7.2000.

7. In the month of September, 2000, the appellants herein filed an application under Order 9 Rule 13 of CPC for setting aside the said ex-parte decree. An application for condonation of delay in filing the suit was also filed. The said application was dismissed by an order dated 22.9.2003 as the appellants could not allegedly satisfactorily explain the cause for delay in filing the said application as also in view of Ar