KOLANDAISAMY Vs. SOUNDIRARAJAN

JUDGEMENT

(1.) CHALLENGING the petition and order dated 05. 12. 2008, made in E. A. No. 319 of 2005, in E. P. No. 46 of 2004, in O. S. No. 173 of 1993, on the file of the District munsif Court, Dharapuram, this petition has been filed.

(2.) THE petitioner is the judgment-debtor in E. P. No. 46 of 2004 in O. S. No. 173 of 1993, on the file of the District Munsif Court, Dharapuram. The properties were brought for sale by the first respondent to satisfy a money decree. The properties were sold in Court auction on 16. 08. 2005. He filed an application in e. A. No. 319 of 2005 under Order 21, Rule 90 and Section 47 and 151 CPC praying the Court to set aside the sale. When the petition was taken up for hearing on 05. 12. 2008, due to the non-appearance of the petitioner, it was dismissed for default, since the learned counsel appearing for the petitioner reported "no instruction". The said order dated 05. 12. 2008 is challenged before this Court.

(3.) MR. LAKSHMANASAMY, learned counsel appearing for the petitioner would contend that even though the petitioner was not present before the Court, the court could not dismiss the petition for default on the representation of the counsel for the petitioner, but, it has to issue notice to the petitioner, who was not present before the Court for further proceedings and without adopting such procedure, the dismissal order was passed and the same is not sustainable.