C.M. No,3-C of 2008 ' This application has been moved by the applicant/appellant for restoration of the main for non - prosecution on 19-11-2008. This application is supported by an affidavit of the learned Advocate of this Court and in this view of the matter, order dated 19-11-2008 is set aside and the main appeal is restored to it's original number. Disposed of.
' On the joint request of learned counsel of the parties, main appeal is taken up for hearing today.
Main Appeal ' Learned counsel for the appellant has contended that learned counsel who was representing the appellant before learned trial court suffered a fracture of his leg and due to his ailment, he could not appear.
He moved an application for setting aside the ex prate proceedings from his bed and no opportunity was granted to the petitioner to defend the suit. He has added that order dated 26-7- 2007 is liable to be set aside as the principle of Natural Justice require that one should not be condemned unheard. The application for setting aside the ex parte decree dated 26-7-2007 is well within time. The application was dismissed on 22-7-2008 on the question of non-maintainability.
The appellant and the respondent were running a joint business and in the course of joint business, the respondent had an access to certain documents and on the basis of these documents, he has prepared a fake negotiable instruments.
2. Learned counsel for the respondent has submitted that so far as decree dated 26-7-2007 is concerned that cannot be assailed in the instant appeal as it has become barred by limitation. The appellant has not assailed the decree within the period of limitation and as such the same as attained finality. He went on to argue that appealable order cannot be set aside through an application as principle of estoppel will be applicable, to the case in hands. Learned counsel then submitted that order dated 22-7-2008 has been passed in accordance with law and learned court has dealt with the issue legally and has passed a speaking order.
3. Heard learned counsel for the parties and record perused.
4. The appellant appeared before learned trial court on 9-1-2007 and was under an obligation to file an application for leave to defend the suit within 10 days, the statutory period of 10 days lapsed on 19-1-2007. The case was thereafter adjourned to 17-1-2007, 31-1-2007, 13-2-2007, 22-2-2007, 5-3- 2007, 29-3-2007, 31-3-2007 and 4-4-2007. The appellant was proceeded against ex parte. Learned court then fixed the matter for ex parte evidence, which was recorded on 26-4-2007 and decree was passed on 26-7-2007. The petitioner moved an application for setting aside ex parte proceedings but it met the fate of dismissal vide order dated 26-7-2007. Subsequently, another application was moved under Order XXXVII 'Rule 4, C.P.C. For setting aside the decree. The application met the same fate of dismissal through impugned order dated 22-7-2008. So far as question of impugned decree is concerned, same has not been assailed in appeal by the appellant within the period of limitation. Since the period of limitation has lapsed and the decree has attained finality and application seeking setting ex parte proceedings aside, was rightly held by the court as incompetent.
5. Adverting to the dismissal of application under Order XXXVII Rule 4, learned court observed in it's order that ex parte decree was passed on 4-4-2007, subsequently, ex parte evidence was recorded and the application for setting aside ex parte decree was dismissed. The grounds, which the petitioner has agitated in the application for setting aside decree dated 26-7-2007, were earlier agitated in the application for setting aside ex parte proceedings but learned court dismissed the application, considering the grounds sufficient for setting aside the ex parte proceedings, do not exist or made out. Learned court then observed that the defence of the, petitioner was struck off evidence was recorded and decree was passed, the matter had attained finality. Learned counsel for the appellant has moved an application for setting aside the ex parte decree on 18-9-2007. This application was drafted by learned counsel on the bed, during the time when learned counsel was not well. Perusal of the record reflects that plea taken in the earlier application for setting aside the ex parte proceedings, was noting of a wrong date of hearing in the diary of learned counsel. The plea which has not been raised in the first application, was not available to the appellant/petitioner in the second application.. The contradictory pleas by itself speak of the fact that the petitioner despite having the knowledge failed to appear and contest the matter. Despite the fact that the court, through a speaking order, granted 10 days time to the petitioner to file application for leave to defend the suit but he has not availed the opportunity. The impugned order passed by learned trial court dated 22-7-2008 is devoid of illegality or from legal infirmity. This appeal has no merit and the same is dismissed with no order as to costs.