V GUGANESWARI Vs. A SHAHUL HAMEED

JUDGEMENT

(1.) THE challenge in this revision is to the orders of the Courts below in refusing to set aside the decree dated 22.2.1996 on the footing that it was an appealable decree and that the application under Order IX Rule 13 CPC was not maintainable.

(2.) ON a perusal of the judgment and decree dated 22.2.1996, I am unable to accept the said reasoning of the Courts Below. It is true that in the judgment and decree dated 22.2.1996, it is stated that issues had already been framed for trial, that PW.4 was ready for examination, and that the cross-examination of PW.1 was not proceeded with, as the counsel for the defendants was not willing. So saying, the trial Court, merely by stating that PW.1 had already been examined in Chief, that Exs A1 to A7 had been marked, held that the claim made in the suit was proved, and granted the decree. Merely on that basis, it cannot be held that triable issues involved in the suit were found to have been established in favour of the respondent/plaintiff in order to hold that the judgment came to be rendered on merits and therefore, the same cannot be construed as an ex-parte decree to invoke Order IX, Rule 13 CPC. In this respect, the judgment of the Honourable Supreme Court reported in 2003 (2) CTC 242 = 2003 3 L.W 489 ( B. Janakiramaiah Chetty v. A.K. Parthasarathi and Ors. ) was cited and this is apposite in all respects. Paras 11 & 12 of the said judgment can be usefully referred to for our present purpose: