PER COURT:- This appeal challenges the Order dated 31-3-1998 passed by learned Civil Judge, Senior Division, Aurangabad by which order the application M.A.R.J.I. No. 158/1994 filed by the appellants herein came to be rejected.

2. The facts involved in the present appeal are stated thus :-

The appellants are the original defendants in Special Civil Suit No. 215 of 198.7 filed by the respondent No. 1 Bank against the appellants and the respondents Nos. 2 and 3 for recovery of the loan amount. The appellants filed their written statement in the said suit and resisted the claim of the respondent No. 1 bank. Along with the written statement, the appellants had also filed a counter-claim to the tune of Rs. 4,92,987/-. The respondent No.1, original plaintiffs, led evidence and the witnesses were also cross-examined on behalf of the appellants/defendants. Thereafter, the case was posted for evidence of the present appellants/defendants but the defendants were absent. The adjournment application made on their behalf came to be rejected. Thereafter, learned Civil Judge, Senior Division, Aurangabad vide his judgment and order decreed the said suit on 2-2-1994.

3. The original defendants Nos.1 and 2 i.e. the present appellants and the respondents Nos. 2 and 3 herein filed Misc. Application requiring judicial inquiry (M.A.R.J.I. No. 158/1994) for setting aside the said ex parte decree passed by learned Civil Judge, Senior Division, Aurangabad. It was the case of the appellants herein and the respondents Nos.3 and 4 that the said suit was posted for evidence on 8-11-1993 but on account of the fact that their Advocate was not well, an adjournment application was filed. The Court after obtaining the reply of the other side had rejected the said application of the appellants. The suit was thereafter posted on 10-1-1994 for arguments but on account of the fact that the elder sister of the Advocate of the applicants in the said application had expired, the said Advocate had, therefore, proceeded to Kolhapur and returned to Aurangabad on 9-1-1994 and, therefore, the said Advocate had no knowledge about the hearing of the case which was fixed on 9-1-1994. Thereafter, the applicants Nos. 2 and 3 to the said application had been to Hyderabad in January. 1994 for some work and in view of the local disturbances they could not return to Aurangabad in time. Therefore, the Advocate of the applicants had filed adjournment application, which was rejected by the said Court. The applicants in the said application came to Aurangabad on 10-2-1994 and when they met their Advocate, they came to know that the said suit was decreed ex-parte against the applicants. Thereafter, they have applied immediately for certified copies of judgment and decree and filed said application M.A.R.J.I. No. 158/94.

4. The said application of the appellants/defendants was opposed by the respondent No.1 Bank/original plaintiff. It was inter alia contended on behalf of the respondent No.1 Bank that the decree which is being sought to be set aside is not an ex-parte decree and hence present application under Order 9, Rule 13 of the Code of Civil Procedure was not tenable. It was contended on behalf of the respondent No.1 Bank that the entire approach of the appellants was to delay the recovery of the amount. It was further contended that time was granted to the appellants/defendants for adducing evidence by levying cost of Rs.1200/- by order passed on Exhibit 236. The said cost was also not deposited by them during the course of the trial. Even thereafter, the applicants had sought adjournment in the said suit on various grounds. The respondent No.1 further contended that during the period from 8-11-1993 till 10-1-1994 the applicants could have arranged for adducing evidence. However, they have failed to do so. The respondent No. 1 further contended that in spite of the decree being against them, which was passed in the year 1994, the applicants had not taken any steps for challenging

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