G C MOHAN Vs. INDIAN OVERSEAS BANK

JUDGEMENT

(1.) THIS appeal is against the fair and decretal orders of the learned IV Additional Judge, City Civil Court, Madras made in I.A. No. 9439 of 1997 in O.S. No. 1271 of 1996 dated 30.4.97 rejecting the petition to set aside the ex parte decree dated 11.2.1997 made in the suit.

(2.) THE suit has been filed for recovery of a sum of Rs. 3,03,130.33 with interest at 24.75 per cent per annum. M/s. P.T.S. Narendravasan and D. Gurumurthy have filed Vakalat on behalf of the petitioner. But on the relevant date that is on 11.2.1997, they reported no instruction. However, they filed a petition on 21.2.1997 to set aside the ex parte decree, under Order IX Rule 13 of Code of Civil Procedure, without a fresh vakalat from the parties. THE petition to set aside the ex parte decree was filed on 21.2.1997 and it came up for orders of the Court on 30.4.1997. On that day, the trial Court rejected the petition on the ground that since the counsel for the petitioner has reported no instruction the petition was not maintainable without filing fresh vakalat for the petitioner.

(3.) AFTER signing the affidavit, the party would have been under the impression that his presence was not necessary for the hearing of the petition to set aside the ex parte decree as the advocate has agreed to appear. It is not the usual practice of the Courts to insist upon the presence of the parties for the disposal of the interlocutory applications. Therefore, the appellant could have gained impression as mentioned above. In Tamil Nadu Electricity Board v. R. Srinivasan (AIR 1992 Madras 40) a Division Bench of this Court has referred to the judgment reported in 1955 (2) MLJ 124.