MANICKA GOUNDAN Vs. KRISHNA GOUNDAN

JUDGEMENT

(1.) THESE petitions arise out of a suit instituted on the small causes side of the Court of the Subordinate Judge of Vellore for the recovery of a sum, which the plaintiff alleged he had advanced as a loan to the defendant. The suit itself was filed on 24th February, 1947. On the application of the plaintiff, suggesting that a short interval should suffice for effecting service of summons on the defendant, the suit was posted to 5th March, 1947, and summons were ordered to issue to the defendant. On 5th March, 1947, the defendant was not present, and the plaintiff's suit was decreed ex parte. From the original of the summons returned to the Court it would appear that the summons was tendered to the defendant on 26th February, 1947, and that he refused to accept the same. The endorsement on the summons was dated 6th March, 1947, and it was apparently only subsequent to 6th March, 1947, that the served copy of the summons with the endorsement of the process server and the earlier one of the village munsiff was sent to the Court. But on 5th March, 1947, itself the suit was decreed ex parte. The defendant filed I.A. No. 365 of 1947 under Order g, Rule 13 of the Civil Procedure Code to set aside the decree that had been passed ex parte. Security had to be furnished and there was a delay of one day in putting into Court the fair bond. In I.A. No. 551 of 1947 the defendant asked the Court to condone the delay. That petition was dismissed. As a result of that I.A. No. 365 of 1947 was also dismissed. Against the decree passed ex parte C.R.P. No. 1337 of 1947 was filed. Against the orders on the Interlocutory applications, C.R.P. Nos. 387 of 1948 and 388 of 1948 were also filed.

(2.) ORDER 5, Rule 19 of the Civil Procedure Code runs:

(3.) TO retiterate, the Court should not have passed a decree ex parte on 5th March, 1947, before the Court had a sufficient legal basis to decide that the defendant had been duly served. As I have pointed out the subsequent intervention on an application under Order 9, Rule 13 of the Civil Procedure Code in no way affects the petitioner's right in this case to have the decree wrongly passed ex parte set aside in revision.