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Yerakantha Subbiah Vs. Dilawar Khan Doulot Joi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1913)24MLJ482
AppellantYerakantha Subbiah
RespondentDilawar Khan Doulot Joi
Excerpt:
- .....the 6th june 1910 applied to set aside the exparte decree. the application was posted to the 14th june. notice was not served on the plaintiff. but the pleader who appeared for him in his execution petition on the 14th was asked to file his counter-affidavit on the 17th, though he says in his affidavit that he appeared only in the petition. on the 17th, the plaintiff and his pleader for the execution petitioner were present, and the munsif set aside the exparte order. the section is imperative that the exparte order can be set aside only after notice is served on the plaintiff. subramania aiyar who appeared for him in the execution petition was not his pleader in the case. the munsif acted illegally in setting it aside without notice. his order also is defective. it does not state any.....
Judgment:

Sankaran Nair, J.

1. The Munsif passed an exparte decree on the 19th August 1907. On the 14th April 1910 the plaintiff applied for execution. The application was posted for hearing on the 14th June. The defendant on the 6th June 1910 applied to set aside the exparte decree. The application was posted to the 14th June. Notice was not served on the plaintiff. But the pleader who appeared for him in his execution petition on the 14th was asked to file his counter-affidavit on the 17th, Though he says in his affidavit that he appeared only in the petition. On the 17th, the plaintiff and his pleader for the execution petitioner were present, and the Munsif set aside the exparte order. The section is imperative that the exparte order can be set aside only after notice is served on the plaintiff. Subramania Aiyar who appeared for him in the execution petition was not his pleader in the case. The Munsif acted illegally in setting it aside without notice. His order also is defective. It does not state any ground, whether notice was not served or the defendant was prevented by any sufficient cause from not appearing.

2. I reverse the Munsif's order setting aside the exparte decree. The defendant will pay the plaintiff's costs throughout.


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