Sufficient cause for setting aside an ex parte decree must be demonstrated, including adherence to procedural rules, with separate legal representation undermining claims of insufficient knowledge.

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JUDGMENT :

CHALLA GUNARANJAN, J.

1. Present appeal is preferred assailing order dated 09.01.2024 passed in I.A. No.1666 of 2021 in O.S. No.36 of 2016 on the file of Principal District Judge, Kadapa, rejecting application filed under Order 9 Rule 13 of CPC for setting aside ex parte decree dated 19.03.2020.

2. For the sake of convenience, parties herein will be referred to as they were arrayed before the Tribunal.

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(a) Initially, O.S. No.36 of 2016 was filed by plaintiff against four defendants for recovery of amount of Rs. 18,17,640/- along with future interest @ 36% per annum. The suit was based on plea that defendants 1 to 4 borrowed sum of Rs. 5,10,000/- from plaintiff on 12.02.2013 for their family necessities by executing registered conditional mortgage deed by Doc.No.6124 of 2013, which mortgaged an extent of Acres 0.30 cents in Survey No.98/2 of Ramarajupalle Village, Kadapa Municipal Corporation. Aforesaid amount was stated to be borrowed for an interest of 36% per annum, repayable within two years.

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(b) Besides, defendants 1 to 3 also stated to have borrowed further sum of Rs. 9,90,000/- on 31.12.2013 for family needs under unregistered debt deed, in total, Rs. 15,00,000/- was borrowed. However, the same was not repaid and postponed on one pretext or another. Further defendants 1 & 4 filed O.S. No.23/2016 on the file of Principal Senior Civil Judge, Kadapa, against plaintiff and defendants 2 and 3, for a decree directing plaintiff herein, defendant therein to execute and register regular sale deed in respect of the property which was under mortgage after receiving amount of Rs. 5,10,000/- together with interest of 24% per annum and further for permanent injunction. As two of the defendants resorted to aforesaid proceedings and that they were not paying the entire amount as borrowed, after issuing notice, present suit came to be instituted.

(c) The trial court has issued notice to defendants, after service of summons, defendants 1 and 4 entered appearance through counsel and defendants 2 and 3 through different counsel on 14.06.2016. Suit was adjourned for filing of written statement to 01.08.2016, further time was sought for, therefore, it was again adjourned to 15.09.2016. Yet again, it was adjourned to 29.09.2016 by imposing costs of Rs. 50/-. Defendants 1 & 4 filed written statements, however, defendants 2 & 3 did not file and on request, it was adjourned again to 30.09.2016 on further costs of Rs. 100/-. Even then, since written statement was not filed and as counsel reported no instructions from his clients, defendants 2 & 3 were set ex parte. Later, the suit proceeded and defendants 1 & 4 contested the matter. Eventually, as contesting defendants took stand that Thumb Impressions on unregistered debt deed under which an amount of Rs. 9,90,000/- was stated to have been advanced were forged, the expert also opined that the thumb impressions did not tally with, plaintiff filed application under Order 23 Rule 1 of CPC to abandon claim against them, which was allowed. Consequently, suit was proceeded against defendants 2 & 3, who were earlier set ex parte and ultimately, ex parte decree came to be passed by order dated 19.03.2020.

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(d) The defendants 2 & 3, thereafter, filed I.A. No.1666/2021 under Order 9 Rule 13 of CPC for setting aside of ex parte decree. The said application was opposed by filing counter. Ultimately, after hearing both parties, the trial court has dismissed the same by impugned order dated 09.01.2024.

(e) Assailing the same, present appeal is filed.

4. Heard Sri A.Syam Sundar Reddy, learned counsel for appellant and Sri K.Venu Gopal Reddy