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Kandaswamy Koundan Vs. N.M.L. Subramanian Chettiar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in113Ind.Cas.409
AppellantKandaswamy Koundan
RespondentN.M.L. Subramanian Chettiar
Cases ReferredSadhu Krishna Ayyar v. Kuppan Ayyangar
Excerpt:
civil procedure code, (act v of 1908), order ix, rule 7 - dismissal of application to set aside order declaring defendant ex parte--remedies open--revision. - .....6th defendant either by way of appeal or by an application under order ix, rule 13 to have the ex parte decree set aside and the only application made on his behalf is against the order of the 23rd of september, 1926, refusing to grant him leave to defend the suit. in my opinion the revisional powers of the high court may be invoked only when there are no other sufficient remedies open for the aggrieved party. in this case the decree itself in the suit was passed on the very same day on which the order sought to be revised was passed. it was open to the 6th defendant to have applied under order ix, rule 13, civil procedure code to set aside that order. it was also open to him to prefer an appeal from the ex parte decree and in such an appeal the question whether the lower court was.....
Judgment:

Tiruvenkata Achariyar, J.

1. The question which I have to consider in this case is whether this application which has been put in for the revision of an interlocutory order passed under Order IX, Rule 7 of the Civil Procedure Code should be entertained. The material facts bearing on the point are as follows : The applicant is the 6th defendant in O.S. No. 68 of 1925 on the file of the Subordinate Judge's Court at Dindigul. He did not appear when the suit was called on for hearing on a date originally fixed for the trial of the suit and he was declared ex parte. There were then several adjournments and the suit was finally disposed of on the 23rd of September, 1926. On the 21st September, 1926, he applied to the Court to set aside the order declaring him ex parte and permit him to file his written statement. That petition came on for hearing on the 23rd of September, 1926, and was dismissed and on the same day the decree in the suit was passed against the 6th defendant ex parte. Against the _order dismissing the application under Order IX, Rule 7 this revision petition was preferred on the 22nd November 1926.

2. The applicant's learned Vakil says that no steps have been taken by the 6th defendant either by way of appeal or by an application under Order IX, Rule 13 to have the ex parte decree set aside and the only application made on his behalf is against the order of the 23rd of September, 1926, refusing to grant him leave to defend the suit. In my opinion the revisional powers of the High Court may be invoked only when there are no other sufficient remedies open for the aggrieved party. In this case the decree itself in the suit was passed on the very same day on which the order sought to be revised was passed. It was open to the 6th defendant to have applied under Order IX, Rule 13, Civil Procedure Code to set aside that order. It was also open to him to prefer an appeal from the ex parte decree and in such an appeal the question whether the lower Court was wrong in proceeding to decide the suit ex parte can be gone into and if the Appellate Court comes to that conclusion it can remand the suit for re-trial See the Full Bench decision in Sadhu Krishna Ayyar v. Kuppan Ayyangar 30 M. 54 : 1 M.L.T. 268 : 16 M.L.J. 479 (F.B.). Instead of resorting to the remedies which were open to him under the Code, the 6th defendant has put in this revision petition. It is now argued that this petition should be entertained as hereafter it will be too late for the petitioner to prefer either an application under Order IX, Rule 13 or an appeal, against the decree itself. I fail to see how the applicant's clear neglect to avail himself of the remedies open to him gives him a better right to apply-to this Court to exercise its powers of revision. The learned Vakil says that it was owing to legal advice the petitioner preferred the present application and abstained from pursuing the other remedies which were open to him. I do not see how that consideration can affect the entertaining of his application, whatever bearing it may have on the question whether if hereafter he prefers either an appeal or an application under Order IX, Rule 13 for having the ex parte decree set aside it may be open to the Court which hears that application to excuse the delay in the presentation of such application or appeal if sufficient cause is shown to its satisfaction. But so far as I can judge it has little bearing on the question whether this revision petition should be entertained. To interfere at this stage by setting aside the order sought to be revised will serve no useful purpose unless it will have the effect of setting aside the decree also. To hold that the order will have such an effect will tantamount to abrogating the provisions of the Civil Procedure Code under which decrees passed in Courts including those passed ex parte can be set aside only by resorting to the appropriate remedies provided in the Code and not otherwise. For this reason stated above I dismiss the Civil Revision Petition with costs.


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