MANOHARAN Vs. VINCENT

JUDGEMENT

(1.) The dismissal of a petition filed under Order IX Rule 13 of the Code of Civil Procedure by the Additional Sub Court, Irinjalakkuda, is under challenge in this appeal filed by the defendant, who suffered a money decree in that suit.

(2.) O.S.No.18 of 2015, a suit for return of advance amount in an agreement for sale, was decreed by the Additional Sub Court, Irinjalakkuda on 30/3/2022 notwithstanding the fact that the defendant (appellant herein) did not adduce any oral or documentary evidence. According to the appellant, he was incapacitated from appearing before the trial court on 17/3/2022 and 19/3/2022, when the case was posted for defendant's evidence, since he was hospitalized due to heart ailment. The trial court proceeded with the suit and passed a decree for realization of an amount of Rs.41,77,534.00 with further interest, on 30/3/2022, as if the defendant (appellant herein) had contested the suit. A petition filed by the appellant as R.P.I.A.No.40 of 2022 under Order IX Rule 13 of the Code of Civil Procedure, for setting aside the above ex parte decree, was dismissed by the learned Sub Judge, as per the impugned order dtd. 22/2/2023, holding that the disposal of the suit, as per the judgment dtd. 30/3/2022, was one on merit, and hence, the application under Order IX Rule 13 of the Code of Civil Procedure, is not maintainable. It is the above order of the learned Sub Judge, which is under challenge in this appeal.

(3.) Notice of this F.A.O. was duly served on the respondent, who is the plaintiff in O.S.No.18 of 2015 of the Additional Sub Court, Irinjalakkuda. The respondent did not appear before this Court or contest this appeal.