KUMARA PILLAI Vs. THOMAS

JUDGEMENT

(1.) The plaintiff has preferred this civil miscellaneous appeal from an order of the Subordinate Judge, Mavelikara, remanding the suit to the Trial Court. The suit was for recovery of money from defendants 1 and 2, father and son, on the basis of oral loans. On the date of first hearing the second defendant did not appear and an order declaring him ex parte was passed. The first defendant filed a written statement denying the transactions. While the trial was proceeding the second defendant made an application on 12-8-1955 for setting aside the order declaring him ex parte. This was an application under O.9, R.7, Code of Civil Procedure, and not under R.13 as observed by the appellate court more than once. The second defendants application was allowed, his written statement was admitted and he was examined. The Trial Court passed a decree against the second defendant and dismissed the suit against the first defendant. The second defendant took up the matter in appeal and the learned Subordinate Judge remanded the suit holding that the evidence recorded before the second defendant entered appearance could not be used against him and that the same should be taken afresh.

(2.) The plaintiff who has preferred this civil miscellaneous appeal contends that the view taken by the court below cannot be supported as the order on the second defendants application was not one setting aside a decree passed ex parte. According to the appellant all that the second defendant could claim was an opportunity to cross examine the witnesses examined during the period of his non appearance.

(3.) Several decisions were cited by both sides most of which deal with the effect of an order setting aside a decree passed ex parte. It is unnecessary to refer to those decisions as this is not a case of setting aside an ex parte decree. Wallace, J., considered the effect of an order under O.9, R.7, Code of Civil Procedure, in Venkatasubbiah v. Lakshminarasimhan (49 M. L J. 273) and observed: