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Aravapalli Viresam Vs. Gurram Adinarayana and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad114; (1940)2MLJ977
AppellantAravapalli Viresam
RespondentGurram Adinarayana and ors.
Cases ReferredVenkatarama Aiyar v. Ramaswami Aiyar
Excerpt:
- - it does not terms require the court to record a finding that it is, so satisfied. ramaswami aiyar air1936mad524 ,in which the learned judge observes that while it is most desirable that the court should, state why it thinks the ex parte decree should be set aside, order 9, rule 13, civil procedure code, does not make it obligatory for the court to state its reasons and he holds that the failure to record findings on the merits of the case-is not a ground for interference in revision......is obligatory, upon the court to record a finding that the defendant who seeks to set aside an ex parte decree was prevented by sufficient cause from appearing. in the present case, the respondents filed an affidavit alleging sufficient cause for their non-appearance. there was a counter-affidavit filed by some lawyer acting for the lawyer of the plaintiff denying these allegations. the learned district munsif does not discuss the truth of the allegations on one side or the other but, simply lays down the terms upon which the ex parte decree should be set aside. now, order 9, rule 13 merely requires the applicant to satisfy the court that summons was not duly 0 served or that he was prevented by any sufficient cause from appearing. it does not terms require the court to record a finding.....
Judgment:

Wadsworth, J.

1. The petitioner seeks to revise an order setting aside an ex parte decree against the respondents on terms that the respondents should deposit suit costs which deposit was made.

2. The only contention which might call for interference in revision is that by inference from the terms of Order 9, Rule 13, Civil Procedure Code; it is obligatory, upon the Court to record a finding that the defendant who seeks to set aside an ex parte decree was prevented by sufficient cause from appearing. In the present case, the respondents filed an affidavit alleging sufficient cause for their non-appearance. There was a counter-affidavit filed by some lawyer acting for the lawyer of the plaintiff denying these allegations. The learned District Munsif does not discuss the truth of the allegations on one side or the other but, simply lays down the terms upon which the ex parte decree should be set aside. Now, Order 9, Rule 13 merely requires the applicant to satisfy the Court that summons was not duly 0 served or that he was prevented by any sufficient cause from appearing. It does not terms require the Court to record a finding that it is, so satisfied. There are two decisions of single judges of this Court taking opposite views on this question whether it is obligatory upon the Court to record a finding. Ananthakrishna Aiyar, J., in the case of Vaithi Chetti v. Govindam Pillai (1931) M.W.N. 239 holds that it is mandatory to record such a finding. The only authority quoted is the decision of the Privy Council in Tasadduk Rasul Khan v. Ahmad Husain , a decision which is not in any way concerned with setting aside ex parte decrees, but has to do with setting aside sales in execution for material irregularities. Moreover, I have been unable to find in the report of that decision the observation open which the learned Judge relies. I must take it that the decision of Ananthakrishna Aiyar, J., is not based on authority. There is a more recent decision of Stodart, J., in Venkatarama Aiyar v. Ramaswami Aiyar : AIR1936Mad524 , in which the learned Judge observes that while it is most desirable that the Court should, state why it thinks the ex parte decree should be set aside, Order 9, Rule 13, Civil Procedure Code, does not make it obligatory for the Court to state its reasons and he holds that the failure to record findings on the merits of the case-is not a ground for interference in revision. With great respect to the learned Judge who held the contrary view, it seems to me that the view of Stodart, J., is correct. Interference in revision under Section 115, Civil Procedure Code, depends on some error pertaining to jurisdiction. If the recording of a finding regarding he presence of sufficient cause for interference is not a mandatory requirement for an order setting aside an ex parte decree it cannot be said that such an order is passed without jurisdiction, merely because the learned Judge does not set forth the reasons for passing the order. It is of course most desirable that a finding on the facts should be given explicitly but I am of opinion that the absence of such a finding is not a ground for interference in revision.

3. The Revision Petition is therefore dismissed with costs.


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