A litigant must demonstrate diligence and provide sufficient cause for delay in setting aside an ex parte decree; mere allegations against counsel are insufficient.

Order

18/01/2024

1. The present appeal has been preferred against the order dated 22.11.2019 passed by the Additional District Judge No.1, Udaipur, Camp Mavli in Civil Case No.25/2018 (CIS No.143/2018) whereby the application under Order 9 Rule 13 read with Section 151, CPC as preferred by the defendant has been rejected.

2. The application under Order 9 Rule 13, CPC was preferred to get the ex parte decree dated 10.03.2017, for recovery of an amount of Rs.2,90,440/- as passed against the defendant, set aside.

3. The case of the defendant was that he did appoint a lawyer to represent him but he neither put in appearance regularly nor did he inform the defendant about the further dates in the matter. The defendant was not even informed by the counsel about the ex parte decree dated 10.03.2017 as passed against him. It is only through the Court that the defendant came to know about the passing of the said decree and pendency of the execution proceedings against him.

4. The learned Court below while rejecting the application, specifically observed that not a single fact as to when the information through the Court as alleged by the defendant was received by him, when the copies of the impugned decree/order/ordersheets were received by him, etc. had been averred. The Court further observed that in the execution proceedings as initiated by the plaintiff, the summons/process was directed to be issued only on 21.07.2018 and the appearance was given by the counsel on behalf of the defendant on 04.12.2018. Whereas, the application under Order 9 Rule 13, CPC was filed on 23.04.2018, much prior to that.

Meaning thereby, the reason given by the defendant that he came to know about the impugned decree through the Court cannot be said to be correct as on 23.04.2018, the process of the execution proceedings had not even been served on the defendant. Further, even after the summons/process being issued on 21.07.2018 in the execution proceedings, the presence was given on 04.12.2018, which shows that the defendant very casually moved an application under Order 9 Rule 13, CPC and chose to wait for its decision and hence, did not put in appearance in the execution proceedings. The Court therefore, finding the reason as averred by the defendant to be incorrect, proceeded on to reject the application for setting aside of the ex parte decree, the same not being bonafide.

5. Learned counsel for the appellant submits that the appellant was not informed about the ex parte decree by the counsel and he bonafidely, as soon as came to know about the ex parte decree, preferred the application under Order 9 Rule 13, CPC even before the execution proceedings were initiated by the plaintiff. Learned counsel further submitted that only for the absence of the lawyer on a single date, the ex parte proceedings were initiated against the defendant and the Court proceeded on to pass the ex parte decree against him which deserves to be set aside.

6. Heard learned counsel for the appellant and perused the impugned order dated 22.11.2019 as well as the impugned judgment and decree dated 10.03.2017 and the order sheets of the execution proceedings as furnished by learned counsel for the appellant.

7. A perusal of the order sheets makes it clear that when the matter was posted for plaintiff’s evidence, learned counsel for the defendant submitted that the matter be posted for settlement as there are chances of amicable settlement between the parties. On the request of learned counsel for the defendant, the matter was posted for settlement on 09.02.2017 on which date none appeared on behalf of the defendant. Therefore, the Court on that date directed to proceed ex parte against the defendant. After 09.02.2017, on the next date i.e. 21.02.2017, the statements of PW-1 were recorded and when the plaintiff did not wish to lead further evidence, the matter was posted for final arguments on 10.03.2017, on which date after hearing the counsel, the impugned decree was passed.

Fro