The court reaffirmed that ex parte decrees can only be issued where proper notice is given, and that procedural irregularities void such decrees.

1. This miscellaneous appeal is filed by the appellants / defendants under O.43 R.1 of the Code of Civil Procedure against the order dated 17-10-2008 passed by the District Judge, Bilaspur in M. J. C. No. 29/2008, which in turn arises out of the judgment and decree dated 21-2-2003 passed in Misc. Civil Case No. 100/1998.

2. By the impugned order, the learned District Judge, Bilaspur dismissed the application made by the defendant Nos.1 and 2 / judgment debtor Nos.1 and 2 under O.9 R.13 of the CPC and in consequence declined to set aside the final decree proceeding dated 21-2-2003 in Civil Suit No. 5 - B / 1993.

3. So the short question that arises in this appeal is, whether the learned District Judge was justified in dismissing the application made by the defendant Nos.1 and 2 / judgment debtor Nos.1 and 2 under O.9 R.13 of the CPC?

4. In order to appreciate the issue involved and raised by the parties to the suit, it is necessary to state relevant facts in short, infra.

5. The respondent No.1 State Bank of India is the plaintiff / decree holder, whereas the appellant Nos.1 and 2 and respondent Nos.2 to 9 are the defendants 2(ga) and (kha) / judgment debtor.

6. The respondent No.1 (plaintiff) filed a civil suit against the appellants and respondent Nos. 2 to 9, being Civil Suit No. 5 - B / 93 in the Court of the District Judge, Bilaspur for recovery of Rs. 4,71,798.05. Though it was a suit for recovery of the money but it was for enforcement of the mortgage, executed by the defendants in favour of the plaintiff for realization of the loan given by plaintiff to defendants. It was therefore a suit governed by the provisions of O.34 of the Civil Procedure Code for enforcement of mortgage for realization of the outstanding loan amount by selling the mortgaged properties. The suit was contested by the defendants.

7. On 4-4-1998 the learned District Judge, Bilaspur decreed the suit and passed a preliminary decree against defendants, jointly and severally. The decree reads as under:
(Editor's Note.-- Vernacular matter omitted)

8. Despite passing of the preliminary decree, the defendants did not ensure its compliance and therefore the plaintiff on 24-8-1998 filed an application for passing a final decree in terms thereof.

9. The order sheets dated 24-8-1998 would show that the application for passing final decree was entertained by the learned District Judge and accordingly he directed issuance of notice to all the defendants of the application made by the plaintiff. The case was then adjourned, awaiting service of notice of the application on the defendants on several dates, such as 26-10-1998, 11-12-1998, 28-1-1999, 18-3-1999, 2-4-1999, 29-6-1999, 29-7-1999, 30-8-1999, 22-9-1999 and 22-10-1999.

10. The order sheet dated 22-10-1999 then records that on this date the District Judge directed issuance of fresh notice to the defendants for their appearance on 4-12-1999. The order sheet reads as under :
(Editor's Note.-- Vernacular matter omitted)  (emphasis supplied)

11. The case was then adjourned for 4-12-1999. On this date it is noted that defendants are absent and further the Presiding Judge is on leave. The Court Reader thus gave a formal next date for 4-1-2000. The order sheet dated 4-12-1999 reads as under.
(Editor's Note.-- Vernacular matter omitted)

12. The order sheet dated 4-1-2000 then reads as under :
(Editor's Note.-- Vernacular matter omitted)  (emphasis supplied)

13. It appears and is indeed clear that on 4-1-2000 the District Judge, proceeded ex parte against the defendants (2 - Ga, 2 - Kha, 2 - Sa and 1).