GLOB CHITS AND FINANCIERS Vs. NEDIYODATH KUNHIMOIDEENKUTTY

JUDGEMENT

(1.) An order dismissing an application to set aside an ex parte decree is under challenge in this appeal. The appellant is a firm, represented by its managing partner. O.S. No. 174/2009 on the file of the Court of the Subordinate Judge, Tirur is a suit filed by the respondent for realisation of money from the appellant. When the suit came up for trial, the respondent gave evidence and the matter was, thereafter, posted for the evidence of the appellant on 16.11.2012. On 16.11.2012, the appellant filed I.A. No. 3425 of 2012, seeking an adjournment in the matter. The court below dismissed I.A. No. 3425 of 2012, set the appellant ex parte in the proceedings, and later decreed the suit as prayed for, on 28.11.2012.

(2.) On the same day, the appellant filed I.A. No. 3731/2012, invoking O. IX R. 13 of the Code of Civil Procedure, seeking an order to set aside the ex parte decree. In support of the application, the brother of the managing partner of the appellant firm filed an affidavit stating that the managing partner of the appellant firm is working in Saudi Arabia as a driver; that he could not secure leave from his employer to come to India to attend the proceedings before the court below and that he could not be present in court on 16.11.2012 and on 28.11.2012 on account of that reason. It is also stated in the affidavit filed by the brother of the managing partner of the appellant firm that the managing partner has a power of attorney holder and even the power of attorney holder was out of India on those days.

(3.) I.A. No. 3731/2012 was opposed by the respondent, contending mainly that the affidavit filed in support of the application was not sworn to by the managing partner of the appellant firm or his power of attorney holder, and as such, I.A. No. 3731/2012 is not maintainable.