A M PUTTASWAMY Vs. K A MARIKALEGOWDA

JUDGEMENT

(1.) The question that arises for determination in this Civil Revision Petition is whether the provisions of Rule 9 of Order IX, CPC, apply and are attracted to an application for the restoration of another application filed under Rule 13 of Order IX in turn made for setting aside an ex-parte decree.

(2.) Petitioner was the plaintiff in OS.38 of 1974 on the file of the Principal Munsiff at Mandya and owing to the failure of appearance of the Respondent, who was defendant therein, the suit came to be decreed ex-parte on 26-8-1974. Respondent instituted proceedings in Misc.5 of 1975 invoking Rule 13 of Order IX for setting aside the said ex-parte decree on 13-6-1975, the said application, Misc.5 of 1975 was itself dismissed for default and Misc.37 of 1975, from which this revision petition arises, came to be filed under Rule 9 of Order IX read with S. 151 CPC for the restoration of Misc.5 of 1975. By his order dt. 19-8-1975 the learned Munsiff allowed Misc.37 of 1975 and restored Misc.5 of 1975 to file. The correctness of this is challenged in this petition.

(3.) Sri Rama Bhat, learned Advocate, for the petitioner contends that the provisions of Order IX, Rule 9 are not available for the restoration of an application under Rule 13 of Order IX which is dismissed for default and that at all events, the respondent had not shown sufficient cause for his absence in Court on 13-6-1975 in consequence of which the said Misc.5 of 1975 came to be dismissed.