J.K. Ranka, J. - (1.)INSTANT appeal has been filed by the defendant -appellants under Order 43 Rule 1(d) CPC read with Section 104 CPC assailing order dated 12.8.2009 passed by Additional District & Sessions Judge No. 1, Ajmer, in Civil Misc. Case No. 13/2003, whereby the trial court has dismissed the application filed by the defendant -appellants under Order 9 Rule 13 read with Section 151 CPC, refusing to set aside the ex parte judgment and order dated 6.2.2003 passed in Civil Suit No. 46/1998.
(2.)BRIEF facts of the case are that the plaintiff -respondent Union of India, filed a suit for declaration on 22.5.1998 before the trial court against one Babulal Gupta, who is husband/father of the defendant -appellants. During pendency of the said suit, Babulal expired and the defendant -appellants, being his legal heirs, were brought on record by the trial court and later -on, vide order dated 5.4.2002 the matter was ordered to be proceeded ex parte against the defendant -appellants. Thereupon the defendant -appellants filed an application on 1.10.2002 for setting aside the ex parte proceedings, but the trial court vide order dated 23.1.2003 dismissed the application under Order 9 Rule 7 CPC, and thereafter passed judgment and decree dated 6.2.2003. The defendant -appellants, thereafter filed an application under Order 9 Rule 13 CPC read with Section 151 CPC before the trial court on 20.3.2003 and the plaintiff -respondent filed reply to the said application 14.11.2002, praying for dismissal of the application. The defendant -appellants produced AW -1 Rajendra Gupta in their evidence and the plaintiff -respondent produced NAW -1 Harish Mudgal on its behalf. The trial court, however, dismissed the application filed by the defendant -appellants under Order 9 Rule 13 CPC read with Section 151 vide order impugned dated 12.8.2009. Hence the present appeal has been preferred by the defendant -appellants assailing the order dated 12.8.2009 passed by the trial court.
Learned counsel for the defendant -appellants contended that work agreement dated 4.10.1977 was 'executed between Contractor Babulal Gupta, husband of appellant No. 1, and respondent -plaintiff Union of India. Disputes arose between the Union of India and the Contractor, and an Arbitrator was appointed in the matter. The award dated 4.2.1984 was received by the learned District Judge, Ajmer, by post on 30.3.1992 for making the award rule of the court, whereupon notices were issued to the Union of India. After service of notice, counsel for the Union of India appeared in such proceedings and sought time to file objections and on 11.2.1993 filed an application on behalf of the Union under Section 14 of the Arbitration Act read with Section 151 CPC stating therein that award was not filed legally, but the learned District Judge, Ajmer, rejecting the application made the award rule of the court and passed a decree accordingly on 15.2.1993. The said order was assailed by the Union in SB. Civil Misc. Appeal No. 501/1993 before this court raising that the decree passed by the District Judge, Ajmer, was bad in law inasmuch as the award was already challenged by the Union before the Delhi High Court by filing a petition under Sections 14 and 17 of the Arbitration Act, which was registered as Suit No. 1473 A/1984, and notices were issued by the Delhi High Court and an order was passed by the Delhi High Court on 10.1.1989, and thus the Arbitrator had committed gross illegality by suppressing the material fact that original award was already lying with the Delhi High Court, and by sending a copy of the award in the Court of District Judge, Ajmer.

(3.)THIS Misc. Appeal came to be decided by this Court on 19.5.1997 wherein the Union was given liberty to institute a civil suit for setting aside the decree passed by District Judge, Ajmer, on the basis of award dated 4.2.1984.