JUDGMENT - M.S. RANE, J.:---The most important point that arises for consideration in this application is whether an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the judgment pronounced in favour of the plaintiffs for want of pleadings of the defendants under Order VIII, Rule 5(ii) and Rule 4 of the Code of Civil Procedure is maintainable.

2. The 3rd defendant has made this application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside, according to him, an ex-parte decree passed on 8th January, 1993 in the suit herein. He has also claimed the stay of the execution of the said decree

3. The plaintiffs are the bankers and the suit herein has been filed for the recovery of the sum of Rs. 11,60,000/- and odd with interest from the defendants in respect of the credit facility granted to them. The 1st defendant, a limited company, are the principal borrower and the 3rd defendant, the applicant herein, is one of the directors of the 1st defendant. The suit was filed somewhere in October, 1979 and shortly thereafter the defendants were served with the writ of summons. It may be stated that as far as service of the writ of summons is concerned, there is no dispute. On 18th March, 1980 in the presence of the defendants advocate the Court gave directions whereunder defendants were directed to file the written statement within four weeks from the date of the said order. The future directions for discovery and inspection were also given. The suit was transferred to the list of long causes and it was further directed for placing the matter for final hearing in February, 1983.

4. After such directions, it appeared on board from time to time. None of the defendants filed their written statement as per the directions of the Court. Finally, the said suit appeared on board on 8th January, 1993, when Mr. Chitnis, learned Advocate for the defendant Nos. 1 and 2(a) was present. The 3rd defendant and the other defendants were not present. As no written statement was filed by defendants, the Court proceeded to pronounce the judgment as provided under Order VIII, Rule 5 of the Code of Civil Procedure. The relevant part of the judgment passed on that day i.e. 8th January, 1993. read as follows:-

".........The plaintiffs in their suit have claimed a sum of Rs. 11, 56, 046.96 ps. with interest being the amount in respect of the credit facilities granted to the defendants as set out in the plaint. The plaintiffs tendered the original documents as per list marked Exhibit A collectively. As stated, there is no written statement filed on behalf of the defendants although they have been duly served with the writ of summons. The case of the plaintiffs as set out in the plaint consequently has remained unchallenged and on controverted which entitles the plaintiffs for the judgment and decree for want of written statement. Decree in terms of prayers (a),(a-1), (a-2) and (b). Receiver to continue till the execution. Decree also in terms of prayers (c-i), (d-i), (d-ii) and (d-iii). Six months time is given to the defendants for redemption and on failure to redeem the receiver to proceed accordingly. Cost quantified at Rs. 4, 900/-".

5. In these circumstances only 3rd defendant had made the application on 22nd April, 1993 which as stated in under Order IX, Rule 13 of the Code of Civil Procedure. In the supporting affidavit to the said application, the 3rd defendant has sought to explain as to why he could not or did not file his written statement and why he could not appear before the court. According to him the negotiations were going on with the plaintiffs in the matter and secondly he i.e. 3rd defendant was unwell and he required medical treatment including hospitalisation. The medical certificate has been annexed to the supporting affidavit which shows that the 3rd defendant was required to take medical treatment in the year 1992 and 1993.

6. The plaintiffs in their affidavit in reply have promptly denie

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