ORDER

13.04.2009 — Heard Mr. S.P. Mishra, learned counsel for the appellants, Mr. Mohapatra, learned counsel for the respondent No.1- Bank and the learned counsel for the Orissa State Financial Corporation (O.S.F.C.).

2. The appellants and the proforma respondents were de¬fendants in O.S. No.29/75 of 1986/82, which was filed before the learned Civil Judge (Sr. Division), Puri by the respondent No.1- Bank, for recovery of an amount of Rs.25,96,174.68. The suit was contested by the appellants and the respondent No.2 - OSFC. The other proforma respondents were set ex parte.

3. Upon examination of P.W.1 on behalf of the plaintiff, the suit was posted to 26.11.1992 for further examination of P.W.1. On 20.11.1992, the plaintiff filed an application to advance the date for moving an application for a direction to produce some documents in the custody of the Special Judge (Vigilance), Bhubaneswar. The copies of the said applications were served on the learned counsel appearing for the appellants-defendants at 3.30 P.M. on 20.11.1992. Receiving such copy, the appellants prayed for grant of accommodation for seven days to enable their advocate to get instruction to file an objection. The said prayer for adjournment was rejected and an order was passed on 21.11.1992 calling for the documents to be produced. The appellant No.1, being aggrieved by the said order, filed Civil Revision No.349 of 1992 before this Court and this Court by order dated 27.4.1993 disposed of the revision holding that the appellant No.1-defendant should withdraw the petition filed by it for transfer of the case before the learned District Judge and the learned trial Court shall give opportunity to the appellants-defendants to cross-examine the witnesses who were examined on 26.11.1992. It was further directed that the witnesses shall be produced for cross-examination at the cost of the plaintiff and the suit shall proceed from the stage where it was left on 26.11.1992 before the defendant was set ex parte but evidence already recorded and documents already marked as exhibits shall be valid evidence. On 26.11.1992, one witness Soura Barik was examined on behalf of the plaintiff and it was recorded in the order-sheet by the trial court that the cross-examination of the said witness is declined by the learned counsel for the defendant and the matter was adjourned to 2.00 P.M. At 2.00 P.M. on that day, three more witnesses, being P.Ws 3,4 and 5 were examined, some documents were marked and the evidence from the side of the plaintiff was closed.

4. In views of the order passed in the Civil Revision, the suit was relegated to the position as on 26.11.1992. The contest¬ing defendants were permitted to cross-examine the witnesses produced by the plaintiff with a direction to the plaintiff to produce the said witnesses for cross-examination at its costs. Subsequent thereto, it is submitted that the witnesses were produced by the plaintiff. But repeated adjournments were sought for by the defendants for cross-examining them. Ultimately, the case was adjourned to 6.5.1994. On that date, the plaintiff was presented with P.Ws 3,4 and 5. A petition was filed by the de¬fendants to recall the order dated 2.5.1994 and permit them to cross-examine the P.Ws 3 and 5. The said prayer was allowed, though not by recalling the order but by allowing the contesting defendants to cross-examine the said witnesses. However, learned counsel present for the defendants expressed his inability to cross-examine the said witnesses on the ground that the conduct¬ing advocate is ill and prayed for further adjournment. The learned court, however, while rejecting the prayer proceeded with the suit and on the same day, heard arguments and passed the judgment in the suit decreeing the suit. Thereafter, an applica¬tion was filed under Order 9, Rule 13 C.P.C. for setting the ex parte judgment passed in the suit. The said application having been rejected, the appellants have preferred the present Miscel¬la