N SUMATHI Vs. KANYALAL BALANI

JUDGEMENT

(1.) A challenge is made to an order of dismissal made by the learned XIV Assistant Judge, City Civil Court, Chennai made in I.A.No. 19612 of 2005, an application seeking leave to defend the suit in O.S.No. 1213 of 2005, in this civil revision petition.

(2.) THE court heard the learned counsel on either side. As could be seen from the available materials and in particular the order under challenge, it was a suit filed by the first respondent herein/plaintiff against the defendants five in number, seeking decree for a sum of Rs.60000/ and odd, alleging that a promissory note was executed by the defendants 1 to 4 on 18.11.2002 for the borrowal of Rs.50000/- from the plaintiff that the fifth defendant executed a letter of guarantee on 25.11.2002 that many a demand made, but no payment was made and hence, a notice was issued, but there was no reply and under these circumstances, the under chapter suit was laid.

(3.) THE court heard the learned counsel for the respondents on the above contentions. THE learned counsel would submit that in the instant case, execution of guarantee letter was admitted by the fifth defendant that a reading of the letter would clearly indicate that it is a guarantee letter that apart from that there was notice issued, but no reply is emanated from the fifth defendant, who is the petitioner herein and that this would indicate that even if his plea is allowed, then vexatious defend would follow. THE learned counsel, relying on the decision of the Supreme Court reported in 2007 (2) SCC 275 (Ajay Sansal Vs. Anup Mehta and Others), would submit that in a case where decree has been passed by the lower court, an appeal has to be preferred and it cannot be challenged by way of civil revision petition before this court and hence, this civil revision petition has got to be dismissed.