A mistake of the court in not printing the name of the advocate-on-record in the cause list can be a sufficient cause for setting aside an ex parte decree under Order 9 Rule 13 CPC.

Samaresh Banerjea, J.

The present appeal as also the application for stay arise out of a judgment and order dated May 7, 2002, passed by the Trial Court rejecting the application of the appellant under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed in the suit on April 11, 2001.

2. Admittedly, the application for setting aside the ex parte decree was made after thirty days of passing the ex parte decree, but in the application the prayer for condonation of delay was made explaining the reasons as to why the appellant could not make the application within thirty days. It was pleaded, inter alia, that in fact the said ex parte decree came to be known to the present appellant who is defendant No.5 in the suit, after expiry of thirty days from passing of the decree.

3. By the impugned order the learned Judge, has held that delay was not satisfactorily explained and accordingly such application is time barred. On merits also the learned Judge held that there was no sufficient cause which prevented the appellant to be present when the suit was heard ex parte.

4. The appellant who claims to be a lawful sub-tenant having been inducted by the receiver in the suit premises in his application for setting aside the ex parte decree, contended, inter alia, that he was contesting the suit by filing the written statement and took subsequent steps by filing the affidavit of documents on oath as also by taking other steps in the suit.

5. It was the case of the appellant that Mr. R. N. Ghosh, advocate, since deceased, was his advocate-on-record, from whom ultimately he took charge and engaged Mr. Somesh Panja as the advocate-on-record for conducting the case and Mr. Panja also filed his vakalatnama on September 13, 1999 in the department. It was further contended that it now transpires that when the suit was appearing for hearing before Justice Kalyan Jyoti Sengupta in the cause list of His Lordship's Court the name of the new advocate-on-record namely Mr. Somesh Panja was not appearing but the name of Mr. R. N. Ghosh, advocate, was appearing who however died in the meantime. It is contended that because of the aforesaid reasons neither himself nor his learned advocate Mr. Panja was in a position to know that the matter was appearing before Justice Sengupta on, the day the suit was ultimately heard ex parte or even prior thereto.

6. It is contended that the appellant came to know about such ex parte decree only on January 10, 2002 from a copy of the notice issued by Mr. Tarit Kanti Banerjee, Advocate/receiver. It has been contended that from the said notice the appellant came to know for the first time that subsequent to the passing of the said decree Mr. Tarit Kanti Banerjee has been appointed as receiver by the Hon'ble Justice Pinaki Chandra Ghose for taking symbolical possession of the property in question from the defendant Nos. 1,3,4 & 5 in the suit.

7. It may also be recorded in this connection that although the appellant took such stand also before the trial court, namely that on the day the suit was heard ex parte and disposed of and prior thereto the name of the learned advocate Mr. Panja was not appearing in the cause list as a result whereof the learned advocate for the appellant had no way of knowing about the date of hearing of the said suit, the list of the said relevant date could not be produced by the appellant before the trial court.

8. The trial court, after recording such submission of the appellant, however, did not give much importance to the same as the trial court was of the view that subsequent to the passing of the decree, the advocate-on-record of the plaintiff made an application for' drawing up and settlement of the order and notice of the same was served upon the learned advocate for the appellant Mr. Panja who, however, did not turn up. The trial court was of the view that because of service of such notice knowledge of the learned advocate for the appellant would be nec