Court which passed ex parte decree alone is competent to set aside same.

M. Thanikachalam. J.

1. This is an Application under Order 14, Rule 8 of Original Side Rules read with Order 9, Rule 13, C.P.C. to set aside the ex parte decree dated 20.6.2001 in C.S.No.566 of 1993.

2. The respondent Indian Bank, as plaintiff has filed the suit for recovery of a sum of Rs.4,11,389 against the applicant/defendant and against, his property also, since it appears, he had executed a mortgage deed, seeking preliminary decree, to be followed by final decree for the sale of the hypotheca.

3. The records would reveal that when the Suit was posted for hearing, the counsel appearing for the applicant/defendant reported no instructions. Therefore, this Court setting the applicant/defendant ex parte, granted an ex parte decree as prayed for on 20.6.2001.

4. As submitted before this Court, though a preliminary decree has been' passed on 20.6.2001, no final decree proceeding has been initiated, as mandated under law. However, the applicant/defendant, realising the consequences of the ex parte decree, has filed this Application before this Court to set aside the exparte decree.

5. There was an inordinate delay, in filing the present Application to set aside the ex parte decree dated 20.6.2001, and therefore, to condone the said delay, the applicant/defendant has filed an Application in A.No.5137/2005. After contest, despite objections, the Application was ordered to be allowed on 2.1.2006, which reads:

"The Application is allowed with a cost of Rs.10,000 (Rupees Ten Thousand only) payable by the applicant/defendant to the respondent/ plaintiff on or before 18.1.2006, failing which the petition shall stand automatically dismissed".

Pursuant to the order passed by this Court as said above, cost also paid and the said Application was allowed condoning the delay, thereby bringing this petition, as maintainable. The plaintiff/respondent has not challenged the order in Application No.5137/2005, thereby it reached finality, wherein observations also made, assigning reasons, why the Application, should be allowed condoning the delay, which reasons have to be extended generally to this Application also.

6. In the affidavit filed in support of this Application, it is alleged, that because of the health condition, the applicant/defendant was unable to move the Court to set aside the ex parte decree in time, thereby causing delay, etc. The averments so stated in the affidavit were accepted by this Court while allowing Application No. 5137/2005. Therefore, it is unnecessary for us, at present to go into detail, about the averments in the affidavit, in order to see whether the Application could be allowed or not. In this view, if the Application is maintainable, before this Court, as said above, extending the reasons assigned by this Court in A.No.5137 of 2005, this Application 4 to be allowed. On the other hand, if this Court is of the view that this Court has no jurisdiction, at present, the proceeding has to be transferred to the Tribunal.

7. Heard the learned Senior Counsel, Mr. T.V. Ramamijarn appearing for the applicant/defendant and the learned counsel, Mr. Ranganatha Reddy appearing for the respondent/plaintiff.

8. This Application is opposed by the respondent/plaintiff, as if this Court has no jurisdiction at present, to decide the Application and if at all, this proceeding has to be transferred to the Debts Recovery Tribunal (hereinafter called 'the Tribunal') having jurisdiction, because of the amount involved, exceeding Rs.10 lacs as per preliminary decree.

9. The learned counsel appearing for the respondent/plaintiff would submit that because of the specific provisions available in Section 31 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter called 'the Act'), this Court has no jurisdiction and the proceeding has to be transferred to the Tribunal, having jurisdiction.

10. Responding to the above said submission, the learned Senior Counsel, Mr. T.V. Ramanujam. appearing for the applican