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Kanhayya Pershad Vs. Gopikishen Ram Dayal - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh
Decided On
Judge
Reported in143Ind.Cas.29
AppellantKanhayya Pershad
RespondentGopikishen Ram Dayal
Excerpt:
hyderabad civil procedure code (act iii of 1323 fasli), sections 127, 160 - ex parte order, whether can be set aside in part--section 160, scope and applicability of. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other..........is no provision in law to set aside an ex parte order in part. as stated above, ordinarily the ex parte decree will be set aside in to when there are sufficient and proper reasons for doing so and, the defendant will be given opportunity to defend. vide section 127, hyderabad civil procedure code, act no. iii of 1323 fasli. however, under section 160, civil procedure code, if the defendant admits the claim of the plaintiff in part the court has got powers to pass the order or judgment it deems proper without waiting for the disposal of any other question. but this provision has application only when the case is pending. in a case where a judgment has been given ex parte and an application to set it aside is presented the court cannot act under the provisions of section 160, civil.....
Judgment:

1. Arguments were heard from the records it appears that the suit was decreed ex parte and the application was presented to set it aside. The learned Judge of the Original Side allowed the application and made the following order:

The original decree dated 11th Amerdad 1341 Fasli is set aside to the extent of interest allowing the remaining decree to Stand.

2. Against this order the miscellaneous appeal has been filed, before us. There is no doubt that under the law a court has got powers to decree the suit in respect of the matters admitted and to proceed with the suit in respect of the matters dispute. This seems to be the Underlying idea of the original court. But the difficulty is that there is no provision to, allow the farmer decree to stand. When the ex parte judgment is set aside the decree based on that judgment will be deemed to cease to be nullus functo. There is no provision in law to set aside an ex parte order in part. As stated above, ordinarily the ex parte decree will be set aside in to when there are sufficient and proper reasons for doing so and, the defendant will be given opportunity to defend. Vide Section 127, Hyderabad Civil Procedure Code, Act No. III of 1323 Fasli. However, under Section 160, civil Procedure Code, if the defendant admits the claim of the plaintiff in part the court has got powers to pass the order or judgment it deems proper without waiting for the disposal of any other question. But this provision has application only when the Case is pending. In a case where a judgment has been given ex parte and an application to set it aside is presented the court cannot act under the provisions of Section 160, Civil Procedure code. If it so acts it cannot but encounter the difficulty as is clear from the facts of the present case. By this time that part of the suit has also been adjudicated upon finally by the lower Court respect of which the part of the judgment was set aside and hence the defendant is at liberty to pursue various remedies. The present miscellaneous appeal, is against that order whereby the decree has been, allowed, to stand in part. It is urged that the order of the lower Court is not correct and the matter that is alleged to be admitted is really in dispute. Under the circumstances we deem it proper to grant the application to set aside the ex parte judgment for which sufficient reasons exist and to remand the case to the Court of first instance for proper orders on the merits. So the appeal is allowed as directed above.

3. The parties to bear their own costs.


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