M MANICK PETER Vs. K SURENDRANATHAN

JUDGEMENT

(1.) This appeal by the defendants is against the dismissal of their application to set aside the ex parte decree passed in the suit. The suit is for recovery of Rs. 32,000/ with interest on the basis of six promissory notes executed by the defendants in favour of the plaintiff. The defendants were duly served with summons in the suit. All the defendants entered appearance on 29-6-1984. No written statement was filed on 6-7-1984 the date fixed for the first hearing of the suit as required by O.8 R.1 CPC. The defendants applied for time for filing written statement and the court on 6-7-1984 granted them time till 6-8-1984. The defendants on 6-8-1984 prayed for further time and the court granted time till 19-9-1984 for the defendants to file their written statement. The case was posted to 19-9-1984. No written statement filed even on 19-9-1984. The defendants and their counsel were absent and the court on the same day pronounced judgment under O.8 R.10 CPC decreeing the suit as prayed for on the basis of Exts. A1 to A8 marked and proved by affidavit of the plaintiff.

(2.) An application to set aside the ex parte decree was filed on 25-9-1984 supported by an affidavit by the counsel who had entered appearance on behalf of the defendants. This petition was dismissed by the lower court on the ground that a decree passed under O.8 R.10 CPC is not an ex parte decree and a petition under O.9 R.13 CPC will not lie to set aside such a decree. R.10 of O.8 CPC as it stood prior to the amendment by the Civil Procedure Code Amendment Act 104 of 1976 reads:-

(3.) An order under R.10 was appealable under S.104 read with under O.43 Rule R.1(b) CPC. The amended Rule reads:-