S. RAMAPRASAD Vs. S. ARAVIND KUMAR

JUDGEMENT

(1.) APPELLANT was the defendant in O.S. No. 8518/2003. The said suit was filed seeking recovery of money in a sum of Rs. 2,46,852/ - with interest at 24% per annum. Written statement of the defendant was taken as not filed. Subsequently, he has made an application seeking permission of the Court to file written statement. Permission was granted on payment of costs. Thereafter, the matter was transferred to Court Hall No. 33 from Court Hall No. 31. According to the appellant, his counsel had informed him not to come to Court until he received a letter/communication from him; however, during February, 2007, he learnt that the suit had been decreed in favour of the plaintiff and therefore, he filed Misc. 790/2007 under Order IX Rule 13 CPC seeking to set aside the ex parte judgment and decree dated 19.01.2007 passed against him. This was resisted by the plaintiff stating that miscellaneous petition was not maintainable as the decree passed was not an ex parte decree, but was passed on merits.

(2.) THE Court below accepted the contention of the plaintiff -respondent herein and has dismissed the miscellaneous petition holding that miscellaneous petition was not maintainable as the judgment and decree under challenge was not an ex parte decree. Aggrieved by the same, the present revision petition is filed.

(3.) ON perusal of the order under challenge and the proceedings in O.S. No. 8518/2003 referred to in the impugned order, it is clear that except filing written statement, defendant - appellant herein had not taken any steps to lead evidence, though plaintiff's evidence had been completed. When the matter was posted for the evidence of the defendant, he did not appear and at that stage, the Court has proceeded to dispose of the suit by decreeing the same. In such circumstances, as the Court below could have only acted under Order IX, petition filed under Order IX Rule 13 was maintainable.