1 The RCS Vanaspati Industries Ltd. Vs. M/s Laxmi Chand Narendra Kumar (S.B. CIVIL MISC. APPEAL NO. 53/2010) Dated : 19.7.2010 HON'BLE MR. JUSTICE SANGEET LODHA Mr. R.K.Singhal, for the appellant. Mr. R.K.Thanvi, for the respondent. 1. Heard learned counsel for the parties. 2. This appeal is directed against order dated 3.12.2008 passed by the Additional District Judge No.3, Jodhpur in Civil Misc. Case No. 76/05, rejecting the application preferred by the appellant under Order IX Rule 13 r/w Section 151 CPC and Section 5 of the Limitation Act for setting aside ex parte judgment and decree dated 18.2.1994 in Civil Suit No.53/89. 3. The respondent/plaintiff filed a suit for recovery of Rs. 90,000/- against the defendant M/s Ram Nagar Cane and Sugar Company Limited which was decreed ex-parte by the Court below vide judgment and decree dated 18.2.1994. After lapse of more than 10 years, the petitioner M/s RCS Vanaspati Industries Ltd. filed an application for setting aside the ex-parte judgment and decree stating that the Director of the company had come to know about the judgment and decree 2 passed ex-parte on inspection of the record on 11.4.2005, after the Executing Court issued the attachment warrant for execution of the decree. 4. The application has been rejected by the trial court observing that on 8.11.1993, the evidence of plaintiff's witness PW-1 Madan Mohan was recorded and thereafter matter was adjourned on two occasions but till then, the counsel appearing for the defendant had not pleaded “No Instructions”. The Court observed that on the question of jurisdiction of the Court, issue No.17 was framed and for that purpose DW-1 Mani Shankar was produced as witness and thus the suit was being contested by the defendant. The Court observed that on 7.1.1994, the counsel appearing for the defendant submitted that he has sent a registered notice to the defendant which has not returned and therefore, the matter may be adjourned and thereafter on 29.1.1994, the counsel appearing for the defendant pleaded no instructions. The Court observed that it is not the case of the defendant that it did not receive the notice, to the contrary, the suit was being contested, therefore, the stand taken that the defendant has no knowledge about the pendency of the suit is ex-facie false. The Court observed that the objection raised by the petitioner herein that the RCS Vanaspati Ltd. is not the proprietor of Ram Nagar Cane and Sugar Mill Ltd. cannot be permitted to be raised inasmuch as no such objection was raised in the written 3 statement filed. Accordingly, the Court found that the application preferred for setting aside the judgment and decree after inordinate delay of ten years cannot be accepted. The contention raised by the petitioner that the applicant purchased the Ram Nagar Company vide Agreement dated 6.7.85 and therefore it is not liable for any liabilities of the said company prior to that date is not the subject matter of the application filed and such objection can be raised by the applicant during the proceedings for execution of the decree. 5. It is contended by the learned counsel for the appellant that no instructions were pleaded by the counsel without information to the appellant/defendant and therefore, the limitation has to be counted from the date of the knowledge of the judgment and decree and not from the date of passing of the judgment and decree. Learned counsel submitted that the explanation furnished by the appellant/defendant was absolutely satisfactory and the same ought to have been accepted by the court below. Learned counsel submitted that the appellant had come into existence only on 6.7.85 and therefore, it has nothing to do with the liabilities of the defendant company prior to 6.7.85. Learned counsel submitted that the appellant is a sick industrial unit and therefore, no recovery proceedings can be taken against it without permission of the Board of Industry and Financial Reconstruction. 6. On the other hand, learned counsel appearing for the respondent 4 supporting the order passed by the court below submitted that the application preferred for setting aside the ex-parte decree after inordinate delay of 10 years has rightly been rejected by the court below for the reasons recorded and the same does not warrant any interference by this Court in exercise of its appellate jurisdiction. 7. Having heard learned counsel for the parties and after perusal of the order impugned and the ex-parte judgment, in considered opinion of this Court, the court below has committed no error in holding that the appellant had knowledge about the suit filed and the ex-parte judgment and decree passed against it by the court below. Indisputably, a litigant should be vigilant enough and should keep himself informed about the proceedings before the Court and if he is thoroughly negligent in prosecuting the case, no indulgence can be granted by the Court. On the facts and in the circumstances of the case, the stand taken by the petitioner that it had come to know about the judgment and decree dated 18.2.94, on inspection of the record on 11.4.2005, after the Executing Court issuing the attachment warrant for execution of the decree, appears to be false. 8. If the appellant claims that it is not liable to discharge the liability of the defendant M/s Ram Nagar Cane and Sugar Mills Ltd. for the period prior to 6.7.85, then it is always open for it to file appropriate objection before the Executing Court which shall be dealt 5 with by the Court concerned in accordance with law. But this cannot be a ground for setting aside the ex-parte decree passed by the Court below in accordance with law. 9. In the result, the appeal fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA), J. rp