K NARAYANA PRAKASH Vs. B CHENGA REDDY

JUDGEMENT

(1.) This is a plaintiffs revision. The petitioner-plaintiff filed a suit for recovery of money based on a promissory note. The execution of the promissory note is admitted but the defendant pleaded that it is not fully supported by consideration and that certain payments were made by him in partial discharge of the pro-note debt. The decree was passed by the learned District ivlunsif, Punganur on 31-1-1990. Pleading that on 31-1-1990, the defendant was at Bangalore and was not able to attend the Munsif court due to illhealth, he filed a petition under Order 9, Rule 13 of the Civil Procedure Code for setting aside the ex-parte decree. The learned District, Munsif rejected that I.A., at the S.R. stage holding that the suit docket dated 31-1-1990 shows that it was represented that the defendant had no evidence and as such, the suit was decreed on merits and hence, the petition filed under Order 9, Rule 13 of the Civil Procedure Code is not maintainable.

(2.) On appeal, the learned Additional District Judge, Madanapalle, found in paragraph 6 of his judgment that on 31-1-1990, to which date the suit stood posted for the defendant's evidence, the defendant was admittedly not present; that the order of the trial court shows that somebody represented on behalf of the defendant that the defendant had no evidence; that the order of the trial court is silent as to whether that representation was made by the advocate appearing on behalf of the defendant or somebody else on behalf of the defendant and that the advocate for the defendant who filed the I.A., in the trial court endorsed on the petition that he had not represented on behalf of the defendant that the defendant had no evidence and as such, the decree passed by the lower court is an ex parte decree. The learned appellate Judge believed the allegation that the defendant was taking treatment at Bangalore due to ill-health; that thereby, the defendant could not have been in a position to instruct his advocate to report that he had no evidence and hence, the remedy of the defendant is to file a petition to set aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure. Conequently, the learned appellate Judge has set aside the order of the trial court.

(3.) Aggrieved by the said decision, the plaintiff preferred the above revision petition;