9911796707
TMI Blog2007 (12) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Suit No. 2/89, was dismissed on the premise that the appellants had not shown sufficient cause for condonation of 10 months' delay in filing the said appeal. 2. The parties herein were on business terms. Appellants were to supply 22,000 Kgs. of 'made tea' for 1984 season and 50,000 Kgs. of 'made tea' for 1985 season to the respondent. However, the appellants supplied only 5,547 Kgs. of 'made tea' for 1984 season and 18.245 Kgs. of 'made tea' for 1985 season. Respondent filed a suit for a decree for a sum of Rs.5,22,69.66 paise together with interest thereon at the rate of 18% per annum. A suit was filed towards the price of the remaining amount for terminal tea supply. In paragraph 5 of the plaint, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff in support of his plaint. Prima facie case is held proved in favour of the plaintiff as per plaint. The suit is decreed on ex-parte for realization of Rs.5,22,669.66 p with costs of the suit and future interest per plaint as prayed for. 5. Appellants contended that they were not aware of passing of the said decree. In the year 1997, an execution case was filed. Summons in the said execution case were served upon the appellants. One Shri Tapan Gogoi was appointed as an Advocate in the said execution case. However, no further steps were taken. The execution proceeding was stayed on 15.7.2000. 6. In the month of September, 2000, the appellants herein filed an application under Order 9 Rule 13 of CPC for setting aside the said ex- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that assuming that the learned Trial Judge should not have granted a decree in terms of Order 8 Rule 10 of the CPC, the appellants were obligated to explain the delay in preferring an appeal. The appeal being continuation of the suit, the learned Counsel would submit that if the same could not have been entertained on the ground of being barred by limitation, the question of setting aside the decree by the High Court in exercise of its appellate jurisdiction did not and could arise. 10. While issuing notice in terms of order dated 16.04.2007, this Court directed the appellants to deposit a sum of Rs. 2 lakhs before the Executing Court within four weeks from the said date. It is stated before us by learned senior counsel Mr. Hansaria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing. The learned Trial Judge stated that only a prima-facie case was found out from the plaint and other documents which were not sufficient for passing a decree as therefore the plaintiff was bound to prove his case. 12. For the reasons aforementioned, having regard to the peculiar facts and circumstances of this case, we think that it is a fit case where the High Court should have condoned the delay. We, therefore, set aside the judgment of the High Court. Ordinarily, we would have remitted the matter back to the High Court for consideration thereof on merit of the appeal, but as we have ourselves looked to the records of the case, we are of the opinion that interest of justice would be subserved if we set aside the ex-parte decree dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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