C M NAGARAJ Vs. THIRUAMMAL

JUDGEMENT

(1.) THE defendant in O.S.No.76 of 1983 on the file of the Sub Court, Nilgiris, is aggrieved against the order of dismissal of his application, I.A.No.110 of 1984 filed under Or.9, R.13, of the Code of Civil Procedure.

(2.) MR.Palpandian, learned counsel for the appellant submitted that in this case, there is no service on the appellant herein within the meaning of Or.5, R.19A and therefore, the Court shall make an order setting aside the decree as against him. The learned counsel would emphasize on the word -shall-employed in Or.9, R.13. The Court below held that as under Ex.B1, Ex.R4 notice was acknowledged by the appellant-s wife and as the appellant did not examine his wife, there was valid service within the meaning of Or.5, R.15.

(3.) AS per the mandate in Or.9, R. 13, the ex parte decree shall be set aside. The only question that immediately falls for consideration is whether the order should be an unqualified one or subject to a condition. Or.9, R.13 states that the Court shall make an order setting aside the decree upon such terms as to costs, payment into Court or otherwise as it thinks fit. At this juncture, thelearned counsel for the respondents vehemently relies upon the statement of the appellant as P.W.1. His testimony is that: -AS per Ex.B3, I have borrowed Rs.25,000 from Karivarathan as hand loan-. It is therefore contended by the learned counsel for the respondents that as on this admission he had a right to apply under Or.12, R.6, for an interim decree on admission, it is all the more why that the Court should impose a condition, while setting aside an ex parte decree. In other words, according to the learned counsel for the respondents, this sum shall be directed to be paid by the appellant. Mr.Palpandian, learned counsel for the appellant would submit that the entire evidence has to be read as a whole together with the stand taken by the defendant in the affidavit filed in support of the application and this Court has to exercise its discretion judiciously. The learned counsel across the bar would contend that there was no money due by the appellant and that the defendant has ample documentary proof in support of such a defence. Taking all these into consideration, I am of the view that if the appellant is called upon to deposit Rs.7,500 and costs of suit, while setting aside the ex parte decree, it will serve the interest of both parties.