NOOR MOHAMMAD SULTAN MOHAMMED Vs. DEVILAL CHUNILAL

JUDGEMENT

(1.) THIS is an appeal against the order of the learned Judge of the City Civil Court, Bombay, dated April 14, 1977 making the defendant -appellant's notice of motion dated March 31, 1977 absolute and setting aside the ex parte decree passed against the defendant on March 2, 1977 on condition that the defendant deposits the decretal amount in Court within a week and that on defendant's failure to deposit the decretal amount in Court the said notice of motion to stand dismissed without further express orders of Court.

(2.) THE facts giving rise to this appeal which are not in dispute are briefly these: Summary suit No. 634 of 1972 was filed by the plaintiff respondent on the strength of a pro -note dated January 16, 1969 for Rs. 3,400 alleged to have been executed by the defendant -appellant. It appears that at the summons stage there was an ex parte decree on June 4, 1972. That ex pane decree was set aside and unconditional leave to defend was in fact granted to the defendant. The defendant filed his, written -statement. The suit was transferred to the list of long causes on March 24, 1975. On March 2, 1977 the suit was taken up by Mr. Thakkar, the Additional Principal Judge of the City Civil Court who was taking commercial causes and it was decreed ex pane. Thereafter one Praveen Patel, the clerk of defendant's advocate Mr. Narayanan, who was entrusted to watch the daily boards of long causes, learnt on enquiries that the suit was placed on board before Mr. Thakkar who was taking commercial causes on February 28, 1977 and thereafter on March 1, 1977 and an ex parte decree was passed on March 2, 1977. Being surprised and shocked he conveyed his message and helplessness in the circumstances to his advocate Mr. Narayanan. That is how his advocate took out a notice of motion giving rise to this appeal on March 31, 1977 for setting aside the ex parte decree which was passed on March 2, 1977.

(3.) THE learned Judge thereafter was pleased to set aside the ex parte decree by passing a cryptic order as under: Advocates on both sides are heard. N/M is made absolute and ex parte decree passed on 2.3.1977 set aside on condition that the defendant deposits the decretal amount in Court within a week. On the defendant's failure to deposit the decretal amount in Court as above the N/M to stand dismissed without further express orders of Court. No order as to costs.