Notice is necessary before passing a final decree in a suit where the defendant was proceeded ex parte in the preliminary decree proceeding. An ex parte final decree can be set aside under O. 9, R. 13 of the CPC if the defendant can show that he was prevented by any sufficient cause from appearing when the decree was passed.

( 1 ) THIS appeal has been directed against the order refusing to set aside a final decree in Civil Suit No. 6-A/70 by the Additional District Judge, Burhanpur which was passed ex parte and without notice to one of the defendants, the appellant herein.

( 2 ) THE respondent No. 1 National Industrial Development Corporationlimited instituted the aforesaid suit against the father of the present appellant i. e. Bhagirath and 3 others defendants 2 to 4 herein for recovery of Rs. 28,90,387/- and seeking a decree for sale of mortgaged property for the realisation of the aforesaid amount. The suit was contested by the defendants by filing their written statements but eventually an ex parte preliminary decree was passed against all the defendants on 25-3-1994.

( 3 ) AFTER passing of the preliminary decree as occasion arose the decree holder filed an application on 20-3-1995 for passing of a final decree as contemplated under O. 34, Rr. 5 and 6 of the Code of Civil Procedure (in short the 'cpc' ). The defendants were proceeded ex parte and the Court below decreed that the mortgaged property mentioned in the preliminary decree be sold and the money realised by such sale be paid in the Court. The appellant who was a party to the proceeding was not served with summons for making the preliminary decree final. After coming to know about the same he filed an application under O. 9, R. 13 of the CPC for setting aside the final decree. The application filed by the present appellant was resisted by the decree holder on the ground that there was no need to give any notice to the appellant as he had already been proceeded ex parte before passing of the preliminary decree. The Court below considering the averments of the parties came to hold that as the petitioner, the applicant in the proceeding under O. 9, R. 13, C. P. C. , was proceeded ex parte in the suit, there was no necessity of service of notice in the final decree proceedings. Being of this view he rejected the application preferred by the present appellant by the impugned order. Thus this appeal by the appellant herein.

( 4 ) SHRI Abhay Sapre learned counsel for the applicant has contended that the Court below has absolutely fallen into error by opining that the appellant was not entitled to be noticed because of his ex parte status during the suit. His further submission is that the view taken by the learned Additional District Judge is against the accepted norms and contrary to the principles of natural justice. To butteress his submission he has relied upon the decisions rendered in the cases of Hirekhan Motikhan v. Narbada Bai, AIR 1952 Nag 177, Tikaram Namaji v. Tarachand Gujaba, AIR 1954 Nag 135 and Mahajan Raghubirprasad v. Pyarelal Amarchand Kalar, AIR 1944 Nag 181.

( 5 ) MR. A. K. Verma learned counsel for the respondent No. 1, refuting the submission of Shri Sapre, has contended that notice to defendant between the preliminary and final decree is not necessary and, therefore, a final decree passed ex parte cannot be set aside under O. 9, R. 13, C. P. C. To substantiate his contentions, he has placed reliance on Mahadeo Pandey v. Somnath Pandey, AIR 1926 All 757, Mohim Chandra Guba Deb Verman v. Nabchandra Choudhary, AIR 1931 Cal 58 and Surendra Kumar Singh v. Mukundlal Saha, AIR 1949 Pat 68.

( 6 ) ON a perusal of the impugned order it is quite apparent that after initiation of the final decree proceeding by order dated 21-3-1995 the Court had issued notices to the defendants therein. The same could not be served on the present appellant, Nandlal. It is not disputed that by order 19-12-1995 the Court passed an order to the effect that as the said defendant had been proceeded ex parte during the preliminary decree proceeding there was no necessity to issue-summons to him. Accordingly he was proceeded ex parte and eventually the final decree was drawn on 15-4-1996. The Court below modified its own order relating to issuance of summons to Nandlal as it was thought a