MANDADI SRINIVAS RAO Vs. SHAIK MEHRUNNISA

JUDGEMENT

(1.) The point in this civil miscellaneous appeal is whether the decree dated 22.11.2012 passed in O.S. No. 232 of 2011 on the file of the Court of Senior Civil Judge, Bapatla can be treated as an ex parte decree and if so whether there is a sufficient cause to set aside the same. The circumstances which led to the filing of this appeal giving rise to the above point can be stated thus. The suit O.S. No. 232 of 2011 has been filed by the respondent herein for recovery of money based on a promissory note. The judgment would show that the plaintiff herself gave evidence as P.W.1 and also examined P.W.2 who is an attestor of the promissory note, which is marked as Ex. A1 in support of her case in the suit. No evidence was let in on behalf of the defendant and it seems that he did not even appear in the matter. The trial Court after considering the matter by its judgment dated 22.11.2012 proceeded to decree the suit on merits.

(2.) Thereafter the defendant filed an interlocutory application purporting to be under Rule 13 of Order IX of (sic. or) Order XVII of the Code of Civil Procedure, 1908 (CPC) to set aside the above decree on the plea that it is an ex parte decree and pleading ill-health was the cause for his absence. That application was returned by the trial Court on the ground of maintainability. However that application was again called in the Court at the request of the defendant and the trial Court framed a point as to whether that application was maintainable and can be numbered. Answering that point the trial Court by its order dated 23.01.2013 in substance held that the decree in question was not an ex parte decree and decided that point in the negative and rejected the said application. It is questioning that order the defendant filed the present appeal.

(3.) The argument of the appellant's counsel is that though he did not lead any evidence and though he did not appear, the trial Court proceeded to dispose of the suit on merits as if he appeared by proceeding under the Explanation to Rule 2 of Order XVII CPC, which it ought not to have done, and it should have proceeded ex parte and therefore, the decree should be treated as an ex parte decree. The trial Court in its order referred to Prakash Chander Manchanda v. Janki Manchanda, 1987 AIR(SC) 42 and B. Seshagiri Rao v. Sri Ramalingeswara Swamivari Devasthanam,1997 1 ALT 80 relied upon by the defendant's counsel but distinguished them as not applicable. It then proceeded to consider two other decisions viz., Vidhyadhar v. Manik Rao, 1999 2 AndhWR 7 and K. Tajaswarup v. V. Veena, 2008 4 ALT 113 and held that the decree in question cannot be treated as an ex parte decree.