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Musammat Dallo Vs. Musammat Sibta Kuar - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.31
AppellantMusammat Dallo
RespondentMusammat Sibta Kuar
Excerpt:
civil procedure code (act 7 of 1908, order ix, rule 13 - ex parte decree, application to set aside--duty of court before issuing notice to the opposite side. - - the court should not have served notice upon the opposite side until it had itself been satisfied that the summons was not duly served or sufficient cause shown for the appearance not having been made......to the opposite side. this was the first error committed by that court. the court should not have served notice upon the opposite side until it had itself been satisfied that the summons was not duly served or sufficient cause shown for the appearance not having been made. on the 12th of february, 1910, the opposite party appeared in court and it would appear from the record that the applicant was so far present that her pleader was in court and prepared to go on with the case. the court passed an order that no further action could be taken until the applicant had filed a copy of the ex parte decree. it was represented to the court by the pleader for musammat dallo that he had no copy of the decree and needed time within which to get it, but he pressed upon the court that his witnesses.....
Judgment:

1. In a case in which Musammat Dallo the applicant was the defendant; a decree ex parts was passed against her on the 14th of May 1909. On the 19th of December 1909, Musammat Dallo applied to the Court which passed that decree to set it aside. Upon this application notice was sent to the opposite side. This was the first error committed by that Court. The Court should not have served notice upon the opposite side until it had itself been satisfied that the summons was not duly served or sufficient cause shown for the appearance not having been made. On the 12th of February, 1910, the opposite party appeared in Court and it would appear from the record that the applicant was so far present that her pleader was in Court and prepared to go on with the case. The Court passed an order that no further action could be taken until the applicant had filed a copy of the ex parte decree. It was represented to the Court by the pleader for Musammat Dallo that he had no copy of the decree and needed time within which to get it, but he pressed upon the Court that his witnesses were present and that they should be examined. The Court, without examining the witnesses, refused to adjourn the case until damages to the opposite party were paid. As the pleader for Musammat Dallo did not produce a copy of the decree and was unwilling to pay the damages, the Court then and there dismissed the application to set aside the ex parte decree. There too the Court was in error. It was the duty of the Court (vide Order IX Rule 13), when the application was made before it, to ascertain whether or not the summons had been duly served and whether or not the applicant was prevented by sufficient cause from appearing when the case was called on for hearing. Until this stage had been reached, notice should not have been sent to the opposite party. Had the Court acted in accordance with law, it would not have got itself into the tangle into which it did. We set aside the order of dismissal and send the case back to the Court of first instance through the lower appellate Court, with a view to take the action required by law under Order IX, Rule 13. Musammat Dallo will have her costs throughout. Costs will include this Court's fees on the higher scale.


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