JUDGMENT
S.M. Jhunjhunuwala, J.
1. This Notice of Motion has been taken out by the defendants excepting the defendant No. 12 (hereinafter referred as ‘The defendants’) for setting aside the order dated 25th April, 1991 passed on plaintiffs’ Notice of Motion No. 1479 of 1989.
2. In respect of packing credit facility and over draft facility granted by the plaintiffs. Bank to the 1st defendants firm, the plaintiffs have filed the present suit to recover a Sum of Rs. 32,19,001,40 together with interest as prayed for in the plaint filed. The plaintiffs took out a Notice of Motion, being the Notice of Motion No. 1479 of 1989 in the suit for appointment of Receiver and for injunction as prayed for therein. On an application made for ad-interim relief’s, on 15th June, l989, Pratap. J.. (as he then was) granted ad-interim injunction interms of prayer (b) of the said Notice of Motion. The said Notice of Motion was served upon defendants in the month of June, 1989. However, for the reasons best known to the defendants no affidavit-in-reply to the said Notice of Motion was filed by the defendants till the said Notice of Motion reached hearing before Suresh, J., (as he then was) on 25th April, 1991. At the hearing of the said Notice of Motion on 25th April, 1991, the former advocate for the defendants appeared and applied for adjournment of the hearing. Suresh, J., was pleased to reject the said application. On 25th April, 1991, the said Notice of Motion taken out by the plaintiffs was made absolute in terms of prayers (a) and (b) thereof. By the said order, Court Receiver was granted liberty to have the ornaments described in Exh. ‘J’ to the plaint sold without any further order. As regards the Bungalow and the Flat mentioned in Exhs. ‘A’ and ‘C’ to the plaint, the Court Receiver was directed to take mere formal possession and to allow the defendants to continues to be in possession thereof. The Receiver was directed to fix royalty amount payable by the defendants in respect of the said Bungalow and the Flat. Being aggrieved by the said Order, the defendants preferred an Appeal being Appeal No. 484 of 1991, in the month of May, 1991, which was unconditionally withdrawn by the defendants on 8th July, 1991.
3. Mr. Bansal, the learned Counsel appearing for the defendants, submitted that the order passed by Suresh, J., on 25th April, 1991, is an ex parte order as the defendants were not heard prior to the passing thereof and as such, the same, in the circumstances of the case, be set aside by this Court. In support of his submission, Mr. Bansal has placed reliance on judgments reported in A.I.R. 1924 Bombay 139 and .
4. In the case of Motilal Ratanchand Marwadi v. Nandram Dalpatram Marwadi, reported in A.I.R. 1924 Bombay 139, the question which came for consideration before the Division Bench of this Court was whether the defendant, in the facts and circumstances of the case, could be said to have appeared property as required by Rule 1 of Order V of the Code of Civil Procedure, 1908. The Division Bench of this Court held that where the pleader is not duly instructed, the hearing of the case would be ex-parte, even though the pleader was present in Court. In the case of Balabux and another v. Sitaram, , it has been held that the mere physical presence of the Counsel in the Court would not in all circumstances amount to an appearance of the party himself . It is further held by the Rajasthan High Court as:
“In view of the provision of Order 3, Rule I and Order 3, Rule 4, appearance of the Counsel is tantamount to an appearance of the party; but if the Counsel whether he be appearing for the defendant or the plaintiff is not duly instructed to proceed with the case his physical appearance alone would not amount to an appearance of the party. Whether the Counsel is duly instructed or not is a question of fact which may either be determined on the basis of the evidence on record or may be inferred from the conduct of the Counsel at the time of hearing of the suit. Where a Counsel though physically present in the Court neither acts nor pleads on behalf of his client and remains a silent spectator of what is done by the Court without in anyway participating in its proceedings, it would be quite reasonable to infer in such circumstances that he was not duly instructed by his client. While drawing such an inference due regard should be given to the purpose for which the appearance was required on that particular date of hearing”.
5. Mr. Bansal is right in his submission that where there has been an appeal against a decree passed ex-parte and such appeal was withdrawn by the appellant, application to set aside that ex-parte decree would lie under Order IX, Rule 13 of the Code of Civil Procedure, 1908. It is so by reason of Explanation II to the said Rule added in its applicability by reason of amendments published in Maharashtra Government Gazette dated 15th September, 1983. However, whether the learned former Advocate for the defendants who appeared before Suresh, J., was duly instructed or not, is a question of fact. As held by the Division Bench of our Court in the case of Motilal Ratanchand Marwadi (supra), if the defendants are unable to prove that their former advocate who appeared before Suresh, J., on 25th April, 1991 was not duly instructed and able to answer all material questions relating to the said Notice of Motion, it can be to said that the hearing of the said Notion of Motion proceeded ex-parte. In the affidavit filed by the defendants in support of the present Notice of Motion, the defendants have admitted that after service of the proceedings, the same were entrusted by them to their former Advocate. The defendants have not stated in the said affidavit that their former advocate who appeared before Suresh, J., on 25th April, 1991 was not duly instructed by them. Merely because the defendants choose not to file their affidavit-in-reply to the said Notice of Motion for about twenty two months and application for adjornment was refused, it cannot be inferred that the former Advocate of the defendants who appeared before Suresh, J., was not duly instructed and unable to answer material questions relating to the subject matter of the said Notice of Motion. In want of any statement in the said affidavit of the defendants, it can also be not inferred that the former advocate for the defendants did not participate, at the hearing of the said Nonce of Motion and that tie did not make submissions on behalf of the defendants more particularly in view of prevalent practice of making submissions across the bar at the hearing of the Motions even without filing counters. While drawing any inference, due regard has to be given to the purpose for which the appearance was required of the former advocate for the defendants on that date of hearing of the said Notice of Motion.
6. In the facts and circumstances of the case, it cannot be held that the former Advocate of the defendants who appeared for the defendants of 25th April, 1991 was not duly instructed by the defendants and was unable to answer material question relating to the subject matter of the said Notice of Motion. Since under the provisions of Order, III, Rule 1 and Order VI, Rule 4 of the Code of Civil Procedure, appearance of the Counsel is tantamount to an appearance of the party, the order passed by Suresh, J., on 25th April, 1991 cannot be said to be an ex-parte order and as such, can not be set aside in the present proceedings.
7. In the result, Notice of Motion is dismissed. However, in the circumstances of the case, there shall be no order as to costs of the Notice of Motion.
8. Mr. Bansal applies for directions to the Receiver for not taking further steps in pursuance of the said order passed by Suresh, J., for a period of four weeks. Since the defendants desire to file an appeal from this order, to give an opportunity to the defendants, I direct the Receiver not to take further steps in pursuance of the said order passed on 25th April, 1991 for a period of three weeks from to-day.