I JAIRAJ Vs. PRAFUL KUMAR PUKHRAJ

JUDGEMENT

(1.) The 5th defendant / 5th judgment-debtor / 5th respondent in E.P. No. 601 of 2001 in O.S. No. 733 of 1999 on the file of the IX Assistant Judge, City Civil Court, Madras is the revision petitioner. The revision is filed disputing the correctness of the order of attachment of movables dated 13-3-2001 made in the E.P. No. 601 of 2001.

(2.) The first respondent herein filed the suit O.S. No. 733 of 1999 before the II Assistant Judge, City Civil Court, Madras to recover the sum of Rs. 20,100/- with future interest at 21% per annum from the date of plaint till realisation. The said amount is due on the suit promissory note executed by the defendants 1 to 5 and the 5th defendant is the revision petitioner. It appears the said suit was decreed ex parte on 7-2-2000. The plaintiff filed E.P. No. 601 of 2001 to recover the amount decreed against the defendants 3 to 5 by ordering attachment of movables. The executing Court ordered attachment of movables by dispensing with the notice to the defendants 3 to 5/judgment-debtors 3 to 5. Such order is challenged by the 5th defendant in this Civil Revision Petition.

(3.) The learned counsel for the 5th defendant/revision petitioner submitted that the 5th defendant/revision petitioner was not served with summons in the suit. In this regard, the learned counsel pointed out that the address of the 5th defendant/revision petitioner is given as No. 55, 13th Avenue, Harrington Road, Chennai-600 031 in the plaint. The notice sent to the above address was returned unserved. Therefore, it appears publication was ordered mentioning the same address and such service was held sufficient and the 5th defendant was set ex parte in the suit and accordingly ex parte decree was passed against the 5th defendant, viz., the revision petitioner also. The learned counsel also submitted a xerox copy of ration card issued to the revision petitioner as early as in June, 1998, in which the address of the revision petitioner is given as Door No. 5/36, Harrington 13th Street, Chennai 600031. The learned counsel further submitted that in fact, the petition filed before the concerned Court to condone the delay of 219 days in representing the petition SR No. 14116 of 2001 to set aside the ex parte decree was dismissed on 12-4-2002. It appears that as per order in C.R.P. (NPD) No. 879 of 2003 dated 5-8-2003 the petition LA. No. 5384 of 2002 which was filed to condone the delay of 219 days in representing the petition Sr No. 14116 was allowed. Now the petition I.A. No. 18368 of 2003 to condone the delay of 245 days in filing the petition to set aside the ex parte decree is pending in the trial Court. The learned counsel further submitted that in the said circumstances, the order of attachment of movables in E.P. No. 601 of 2001 is not proper.