Makund Biswal Vs State Bank of India.

Signature Not Verified

Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Mar-2024 17:04:00

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.4138 OF 2006

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Makund Biswal

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…. Petitioner

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Ms. Shuvra Mohapatra, Advocate on behalf of Mr. Avijit Patnaik, Advocate

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-versus-

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State Bank of India, Sundargarh

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…. Opp. Party None

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CORAM:

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JUSTICE K.R. MOHAPATRA

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Order No.

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ORDER 06.03.2024

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1. This matter is taken up through hybrid mode.

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This writ petition has been filed to set aside the order dated 16^th January, 2006 (Annexure-1) passed in CMA No.25 of 2004, whereby learned Civil Judge (Senior Division), Rourkela rejected an application under Section 151 CPC refusing to restore the petition under Order IX Rule 13 CPC.

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It is submitted by Ms. Mohapatra, learned counsel being authorized by Mr. Patnaik, learned counsel for the Petitioner that M.S. No.126 of 1991 was filed by the Plaintiff-Opposite Party for realization of amount of Rs.2,74,600/-. The suit was decreed ex parte, for which MJC No.48 of 1997 was filed under Order IX Rule 13 CPC to set aside the ex parte decree. The said application was dismissed for default of the Petitioner. Subsequently, the Petitioner filed Misc. Case No.124 of 2002 to set aside the ex parte order passed in Misc. Case No.8 of 2002, which has been dismissed vide order under Annexure-1. Hence, this writ petition has been filed.

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It is submitted that learned trial Court did not take into consideration the medical certificate submitted by the Petitioner

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Mar-2024 17:04:00

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showing that due to his illness, he could not appear on the date of hearing of the Misc. Case. As such, the impugned order under Annexure-1 should be set aside and the Petitioner should be given an opportunity of hearing.

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None appears for the Opposite Party-bank, although it is represented by learned counsel.

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Upon hearing learned counsel for the Petitioner and on perusal of the record, it appears that Money Suit No.126 of 1991 was decreed ex parte against the Petitioner, for which an application under Order IX Rule 13 read with Section 151 CPC was filed in MJC No.48 of 1997 for setting aside the ex parte decree, which was dismissed for default. Subsequently, the Petitioner filed Misc. Case No.153 of 1999, Misc. Case No.147 of 1999, Misc. Case No.19 of 2001, Misc. Case No.8 of 2002 and Misc. Case No.124 of 2002 one after another to set aside the dismissal order passed in the MJC. In view of the above, it appears that the Petitioner was thoroughly negligent in pursuing the matter.

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On perusal of the impugned order under Annexure-1, it is apparent that learned trial Court had taken into consideration the medical certificate submitted by the Petitioner in support of his illness. But, it was disbelieved on the ground that neither the treating physician was examined nor any prescription or cash memo in support of purchase of medicine was filed along with the petition. It further appears that repeated applications for restoration of MJC No.48 of 1997 were dismissed on merit. Hence, Misc. Case No.124 of 2002 or CMA No.25 of 2004 is not maintainable. Thus, I find no infirmity in the impugned order under Annexure-1.

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Mar-2024 17:04:00

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