Per R.M.S.KHANDEPARKAR, J

1. Heard. By consent, taken up for final disposal.

2. Since common question of law and facts arise in the above appeals and the notice of motion, they were heard together and are being disposed of by this common order.

3. All these matters originate from the order dated 21st March, 1997 passed in Suit No.3037 of 1991 by the Learned Single Judge purportedly exercising the powers under Order 8 Rule 5 and/or 10 of the Code of Civil Procedure, 1908 while disposing the suit.

4. In the year 1988, the respondent No.1 sought to import from U.S. and Japan Photographic Machineries under Tariff Item No.98.01 of Customs Tariff Act, 1975 and to have the items assessed under the "Project Import Scheme" and claimed concessional rate of duty on the said goods. In 1990, the Principal Collector of Customs denied clearance of the goods under the said Tariff Item on the ground that the same did not fall under the said item. The respondent No.1 therefore filed a Writ Petition No.1314 of 1990. Interim order came to be passed in the said writ petition directing the goods to be cleared subject to the Respondent No.1 fulfilling the conditions mentioned in the order. The respondent No.1 however failed to comply with those conditions under a letter dated 8th August, 1990 addressed by the respondent No.2 to the respondent No.1, and it was informed that the said goods should be cleared within 10 days, otherwise the same would be sold under the provisions of Sections 61 and 62 of the Major Port Trusts Act, 1963 on 20th August, 1990. A letter was addressed by the respondent No.1 to the respondent No.2 on 3rd September, 1990 informing that the procedure for clearance of the goods would be completed shortly. The respondent No.2 informed the respondent No.1 under letter dated 14th September, 1990 that the sale was postponed to 17th September, 1990. Ultimately, on 11th December, 1990, the goods were sold by public auction by the respondent No.2. The respondent No.1 filed the suit on 18th September, 1991 claiming a sum of Rs.38,24,827/- with interest from the appellants and the respondent No.2. Meanwhile, Writ Petition no.1314 of 1990 was dismissed on 2nd April, 1992. An ex parte decree came to be passed in the said suit on 21st March, 1997. An ex parte order dated 18th November, 2000 came to be passed in Notice No.1550 of 1999 in Execution Application No.387 of 1999 in the said suit No.3037 of 1991 filed by the respondent No.1 against the appellants and the respondent No.2. In 2001, Notice of Motion No.606 of 2001 came to be taken out by the appellants for setting aside the ex parte decree dated 21st March, 1997 as well as the ex parte order 18th November, 2000 in the execution proceedings. By an order dated 25th October, 2002, the Learned Single Judge refused to set aside the ex parte decree dated 21st March, 1997 holding that the ex parte order is appealable and no notice of motion is maintainable to set aside the said order. The appellants thereupon filed the above appeals, one against the order passed by the Learned Single Judge dismissing the notice of motion and another against the original ex parte decree in the suit. Since there was a delay in filing the appeal against the ex parte decree, Notice of Motion No.625 of 2003 was taken out for condonation of delay in filing the said Appeal No.585 of 2003, and the same was allowed and the delay was condoned by order dated 30th June, 2003.

5. As regards the Appeal No.585 of 2003, the same is against the decree passed on 21st March, 1997. The decree is purportedly passed in exercise of the powers under Order 8 Rule 5 and/or 10 of the Code of Civil Procedure.

6. Order 8 Rule 5(1) of the Code of Civil Procedure provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability, provided that the Court m