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Kanakasundaram Pillai Vs. Somasundaram Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1918)35MLJ375
AppellantKanakasundaram Pillai
RespondentSomasundaram Pillai and anr.
Excerpt:
- - we do not see any good ground, nor has any been suggested to us, why a final decree like this should not be treated as a 'decree 'within the meaning of order ix, rule 13 if it has been passed ex parte within the meaning of the law. we do not think that there is really any substantial distinction to be based on a ground like this, and we are of opinion that the ends of justice require that we should not unduly narrow the scope of e......decree for the sale of certain property and an application was then made for the passing of the final decree. at the hearing of this application the respondent did not appear and the final decree was passed in his absence. subsequently he made an application under order ix rule 13 civil procedure code to set aside the final decree which he alleged was passed ex parte. the district munsif acceded to that application and the petitioner now has applied to us in revision to set aside the order, firstly, on the ground that it is not a case to which order ix rule 13 applies.2. the point raised seems to be one of first impression and its decision depends on the interpretation of c. ix rule 13. it says, ' in any case in which a decree is passed ex parte against a defendant he may apply to the.....
Judgment:

1. The petitioner obtained a preliminary mortgage decree for the sale of certain property and an application was then made for the passing of the final decree. At the hearing of this application the respondent did not appear and the final decree was passed in his absence. Subsequently he made an application under Order IX Rule 13 Civil Procedure Code to set aside the final decree which he alleged was passed ex parte. The District Munsif acceded to that application and the petitioner now has applied to us in revision to set aside the order, firstly, on the ground that it is not a case to which Order IX Rule 13 applies.

2. The point raised seems to be one of first impression and its decision depends on the interpretation of C. IX Rule 13. It says, ' In any case in which a decree is passed ex parte against a defendant he may apply to the court by which the decree was passed for an order to set it aside.' Now there is nothing in the language of that rule which compels us to limit the word ' decree' to the preliminary decree in a case where the law contemplates preliminary and final decrees. It cannot be denied that a final decree is as much a decree within the meaning of the law as a preliminary decree. The Code provides certain procedure to be followed in the proceedings for a final decree; an application has to be made by the pereliminary decree-holder and notice has to be given to the judgment-debtor to show cause why such a decree should not be passed. We do not see any good ground, nor has any been suggested to us, why a final decree like this should not be treated as a ' decree ' within the meaning of Order IX, Rule 13 if it has been passed ex parte within the meaning of the law. In such cases, the proceedings commencing from the preliminary decree must be treated as separate proceedings and if those proceedings are. terminated by a decree which has been passed ex parte we do not see, so far as the language of the rule, or of any other provisions of the code that have been brought to our notice are concerned, why the procedure set down for setting aside ex parte decrees should not apply. Our attention has been drawn to the fact that Rule 13 contemplates cases in which the summons has not been duly served and the contention is that in proceedings for final decree in a mortgage suit what is served is not a summons but a notice. We do not think that there is really any substantial distinction to be based on a ground like this, and we are of opinion that the ends of justice require that we should not unduly narrow the scope of E. 13, Order IX. It is of importance that the proceedings for a final decree should be had with due regard to the procedure laid down for the purpose and that if a final decree is passed ex parte in the absence of the defendant he should be given an opportunity of having that decree set aside by a proper application if he was prevented from appearing for sufficient cause.

3. The next contention raised is that the application was made after the time limited had expired, but that is not a question of jurisdiction in which we can interfere with the order in revision. The petition therefore, fails and is dismissed with costs.


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