RENGAMMAL Vs. N SRINIVASAN

JUDGEMENT

(1.) The petitioner is the plaintiff. She has filed a suit on the basis of a mortgage executed by one Narayanaswami, who is the father of defendants 1 and 2. The mortgage is dated 2.6.1969. A preliminary decree was passed by the trial Court on 23.11.1982.

(2.) It appears that during the pendency of the suit, the defendants claimed protection under the Debt Relief Act, Tamil Nadu Act 13 of 1980 read with Tamil Nadu Act 11 of 1981. Defendants 1 and 2, therefore, applied for a stay of the suit pending the determination of their right to the benefit of the Debt Relief Act by the appropriate authorities. This application for stay of the suit was rejected by the trial Court. A revision petition filed against the order declining to stay the suit was also rejected by this Court on 15.11.1982. Thereafter the suit was taken up on 22.11.1982. It appears that on that date, the second defendant was not present but the other defendant was present. Prior to this, the first defendant was already examined and cross-examined by the plaintiff. When the suit was taken up on 22.11.1982, the plaintiff was cross-examined on behalf of the defendants 6 to 11. The trial Court proceeded to decide the suit on merits, having regard to the Explanation to Order 17, rule 2 of the CODE OF CIVIL PROCEDURE, 1908. Order 17, rule 2 and the Explanation thereto read as follows:

(3.) A preliminary decree having been passed, defendants 1 and 2 alone applied to the trial Court under Order 9, rule 13 of the CODE OF CIVIL PROCEDURE, 1908 for setting aside the decree on the ground that the decree was an ex parte decree and that they were unable to remain present on 22.11.1982 because they received information on 30.11.1982. What the intimation was about is not very clear. The only relevant paragraph in which this is stated reads as follows: "Myself and my brother were away to attend our domestic affairs and we were not able to be present for the trial of the suit posted to 22.11.1932 and information was received by us only today, 30.11.82. When we contacted our advocate, we learnt that he had reported -no instructions- and a preliminary decree was passed ex parte against us on 22.11.1982. According to the plaintiff, the application for setting aside the ex parte decree was not maintainable and the only remedy for the present petitioners was to file an appeal against the preliminary decree.