KUPPASAMY MUDALIAR Vs. GOVINDRAJ ASARI

JUDGEMENT

(1.) On 20.10.1997, when the appeal stands posted in A.S.N. No. 50 of 1995 on the file of the Principal Subordinate Judge, Cuddalore the learned counsel for the appellants reported "no instruction." As a result, the matter was adjourned to 4.11.1997 for judgment and on that day the judgment was pronounced passing ex parte decree. I. A. No. 329 of 1997 was subsequently filed by the appellant contending that he was suffering from virus fever in second week of September, 1997 and he was not in a position to go over to advocate Office and give proper instructions, on which date his counsel reported no instruction. Hence ex parte decree was passed. The appellants filed an application under Order 41 Rule 21 C.P.C. contending that notice should have been served on the appellants when there was no representation on behalf of the appellants. Hence, they sought for setting aside the decree and judgment passed on 4.11.1997 terming as ex parte decree.

(2.) Counter was filed by the respondent contending that the judgment and decree cannot be set aside as it was passed on merits. By an order dated 21.10.2000, the appellate Court dismissed the said application pointing out the contradiction regarding the health of the appellant by evidence of P.W.2 Doctor.

(3.) Against the said dismissal order dated 21.10.2000, the present appeal has been filed. Mr. M. Vellaisamy, learned counsel for the appellants contended that the Court below ought to have given notice to the appellant before deciding the case on merits especially when the counsel for the appellant reported no instruction on behalf of the appellants. It was the bounden duty of the Court to issue notice to the appellants and in the absence of appellants the matter should not have been decided.