( 1. ) ONE of the defendants filed the present appeal against the order dated 14. 9. 2004 passed by the IInd A. D. J. , Indore in M. J. C. No. 46/2002, rejecting the application filed by the appellant under Order 9 Rule 13 of the Civil Procedure Code for setting aside ex parte judgment and decree dated 25. 10. 1996 passed in Civil Original Suit No. 47-A/1996.

( 2. ) THE respondent No. 1 Bank of India (hereinafter called as the Bank) filed a suit against the appellant, his brother and two other defendants for recovery of money of Rs. 5,44,342,12 with 22. 5% interest from the date of filing of the suit up to execution of the decree. The Bank pleaded that it granted a cash credit (hypothecation) loan to a proprietary firm of Rs. 2,40,000 and gave initial advance of Rs. 30,000 on 8. 7. 1983. The appellant was one of the guarantors of the loan and mortgaged his property, a house in favour of the Bank on 4. 6. 1987. The Bank in para 9 of the plant under the head plaintiffs claim submitted that on 29. 6. 1992 Rs. 3,04,338. 87 were due in cash credit account out of which Rs. 2,24,159. 70 were the interest from 1. 7. 1989, from the above pleadings it is not clear that how much amount was due on account of principal and interest @ 22. 5% from the date of filing of the suit up to execution of decree on whole amount Rs. 5,44,342. 12 including interest.

( 3. ) THE suit was filed by the Bank on 29. 6. 1992 and on 2. 7. 1992 an order was passed sending summons to the defendants, it could not be served to the defendant/appellant, hence on 4. 11. 1992 the Judge ordered again payment of process by registered post as well as ordinary post. On 5. 10. 1993 acknowledgement of registered A. D. , sent to the appellant received by the Court. The appellant did not present on the date i. e. 16. 12. 1983, hence ex pane proceedings were ordered against him by the Court by observing that in spite of service of summon nobody including the defendant was present on the date fixed for hearing of the suit.

( 4. ) FINALLY by judgment and decree dated 25th October, 1996 in C. S. No. 47-A/1996 the Trial Court decreed the suit of the Bank by holding that the respondent entitled a decree of Rs. 5,44,342. 12 with interest of 22. 25% quarterly from the date of filing of the suit from the defendants jointly with cost.

( 5. ) ON 3. 3. 1998 the Bank filed execution proceedings before Vth Additional District Judge, Indore with regard to execution of decree passed in C. S. No. 47-A/1996 of total amount of Rs. 18,89,773. 50 against the appellant and other three defendants. After coming into force of R. D. D. B. F. Act, the Act No. 1993, the recovery proceeding transferred to Debts Recovery Tribunal, Jabalpur and it was registered as Execution Case No. 20/2001. The Tribunal issued attachment order of property of the petitioner with regard to total amount of Rs. 35,99,819. 00. Thereafter petitioner filed an application before the District Judge, Indore under Order 9 Rule 13 of the Civil Procedure Code for setting aside of ex parte decree and judgment dated 25. 10. 1996 passed in C. S. No. 47-A/1996.

( 6. ) THE petitioner pleaded that he first time came to know about the ex parte judgment and decree of the suit after the order of attachment of his property passed by the D. R. T. A. Jabalpur on 4. 10. 2001 in execution proceeding No. 20/2001 thereafter he applied for certified copies of the judgment and decree and filed the application on 9. 10. 2001. He submitted that he never received any summon of the aforesaid Civil Suit and prayed selling aside ex parte decree. The Bank opposed the application contending that summons were duly served on the petitioner, he himself signed the acknowledgement in spite of that he did not appear before the Court and Civil Court had no jurisdiction to entertain the application. The petitioner deposed before the Court in support of the application, saying he had not received any summon neither his family members, of the Civil Suit, no other wi