Maleshappa vs Laxmi Trading Finance and Others

K.N. Phaneendra, J.—Heard the learned counsel for the petitioner and the respondents. Perused the records.

The undisputed facts which are before the Court are:

The respondent Laxmi Trading Finance filed a suit in OS No. 188/2003 on the file of the I Addl. Senior Civil Judge, Bijapur, for recovery of a sum of Rs. 1,78,050/- with future interest at the rate of 23% p.a. The said suit came to be decreed ex-parte vide judgment and decree dated 24.6.2009. Being aggrieved by the said judgment and decree, the defendants by name Chandrashekhar and Malleshappa filed Civil Misc. No. 35/2010 on the file of the same Court for setting aside the ex parte judgment and decree passed against them and to restore OS No. 188/2003 on to the file of the Trial Court with a permission to contest the suit by them. The said Civil Misc. No. 35/2010 came to be dismissed vide order dated 15.12.2012. Aggrieved by the said order, the first defendant Chandrashekar filed Misc. Appeal No. 4/2013 on the file of the III Addl. District Judge, Bijapur, making the plaintiff and one Madivalappa and Malleshappa as respondents. Though the second defendant Malleshappa (petitioner herein) did not prefer any independent appeal, nevertheless, he was made as one of the respondents in the said appeal. The learned District Judge vide order dated 14.8.2013, allowed the said appeal and consequently set aside the judgment and decree passed against the appellant therein subject to payment of cost of Rs. 2,000/- and directed the Trial Court to proceed with the case by providing opportunity to the said defendant. The parties were also directed to appear before the lower Trial Court on 1.10.2013 without waiting for any notice from the Trial Court. The said order passed by the III Addl. District Judge, Bijapur is under challenge in this Revision Petition. 3. After issuance of notice, respondent No. 1, 1A appeared before the Court and contested the proceedings by engaging the counsel. Respondent No. 2 was not served with the notice. However, it appears, he has not challenged the order passed by the appellate Court in Misc. Appeal No. 4/2014. Therefore, according to me, his presence is not necessary before this Court. Therefore, his presence is dispensed with.

The only point that has been raised before this Court by the petitioner''s counsel is that the first appellate Court has set aside the judgment and decree passed by the Trial Court, but it ought to have allowed the appeal on behalf of respondent No. 2 also, because the judgment and decree passed by the Trial Court was inseparable and indivisible in nature between the first and second defendant as joint and several liability was fixed in the said suit.

The learned counsel for the respondent, however supported the judgment of the first appellate Court. In this back ground, the learned counsel for the appellant drawn my attention to the decision of the Hon''ble Apex Court reported in Bank of India Vs. Mehta Brothers and Others, , wherein the Hon''ble Apex Court has said that-

"Setting aside the ex-parte decree-power of Court - the word ''decree'' - In first proviso to mean decree in general - Cannot said to be legislative intention that only the ex-parte decree can be set aside and not a decree passed in toto - Decree was indivisible - permissible for Court, on an application of a defendant against whom a decree has been passed ex-parte, to set aside the decree also against the other defendants appearing in the same suit and dismissed on contest." At paragraph 43, it is made it clear that-

"Out of six defendants, defendant No. 6 has challenged the ex-parte decree passed against him respondent Nos. 1 to 5 have not challenged the same. However, it is said that Bank to restore the suit in toto on the application under Order 9 Rule 13 of CPC filed by respondent No. 6 and the dismissal of the suit passed against respondent Nos. 1 to 5 also to be restored. The decree was indivisible and it was passed jointly and severally against the defendants." 6. In view of the above said decision, I do not find any strong reasons to reject the Revision Petition. However, it is made it clear that the Trial Court has to dispose off the case as early as possible. The suit was filed in the year 2003 and it came to be decreed in the year 2009. More than 13 years have already been elapsed. Therefore, with such observation, the following order is passed:

The petition is allowed. Consequently, the judgment and decree passed in OS No. 188/2003 dated 24.6.2009 by the I Addl. Senior Civil Judge, Bijapur, is hereby set aside against the present petitioner also on cost of Rs. 2,000/-. The petitioner is also directed to appear before the Trial Court with the copy of this order and is permitted to contest the proceedings. The petitioner has to appear before the Trial Court on 9.2.2015 along with the copy of this order and on the basis of which, the Trial Court has to proceed with the case in accordance with law and dispose off the suit on merits preferably within six months.