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Judgment
J.V. Gupta, J.—This petition is directed against the order of the trial Court dated 3rd October. 1988, whereby ex parte decree was set aside subject to the furnishing of the Bank guarantee in the sum of Rs. 1,50,000/-.
The grievance of the Petitioner is that he could not be directed to furnish the said bank guarantee because it was found as a fact by the trial Court that there was no due service on the Defendant-Petitioner. Once this was so found, then there was no occasion for the trial Court to give such a direction. In support of his contention he referred to Raj Kumar Soni Vs. Mohan Meakin Breweries Ltd., , Chhagan Raj and Others Vs. Sugan Mal and Another, Alimohammad Vs. Manaklal Ratanlal, and N. Karuppan Vs. M. Sankaran Nair,
No one is present on behalf of the Plaintiff-Respondent in spite of service.
I find force in the contention raised on behalf of the Petitioners. It has been found as a fact by the trial Court while discussing issue No. 1 that "in this view of the matter I am of the opinion that when here is no due service on the Defendant this itself is sufficient ground to set aside the ex parte judgment and decree dated 6th October, 1987." Once that finding was given then the Defendant could not be burdened for furnishing the Bank guarantee. At the most the interest of the Plaintiff could be safe guarded by directing for furnishing the adequate security for compliance of the decree which may be passed, to the satisfaction of the Court. The judgments referred to above do support this contention of the learned Counsel for the Petitioners.
Consequently, this petition succeeds, the said direction in the impugned order for furnishing the Bank Guarantee is set aside and it is directed that the Petitioner will furnish adequate security for compliance with the decree, if any, which may be passed in the suit to the satisfaction of the Court within two months, which may be accepted after notice to the Plaintiff.