G M NARAYANA SWAMY Vs. UNION OF INDIA

JUDGEMENT

(1.) This Letters Patent Appeal by the 4th defendant is directed against the Judgment of our learned brother, Ramachandra Rao J, dismissing his Civil Miscellaneous Appeal No. 80/71 preferred against the Order of the Court of the Subordinate Judge, Vizianagaram, rejecting his I.A No. 286/ 1969 for setting aside the ex-parte decree dated 25-9-61 passed in O S.No. 13/61 by the District Court, Visakhapatnam.

(2.) The respondent herein instituted O.S. No. 29/60 in the court of the Subordinate Judge, Visakhapatnam against the 1st defendant-firm and its partners, the defendants 2 to 6, and the 7th defendant, the surety for recovery of a sum of Rs 16,445-34 p. for breach of an agreement entered into with the plaintiff on July 12, 1957 The suit was withdrawn by the District Court, Visakhapatnam from the file of the Sub Court, Visakhapatnam to its file and numbered as O.S. No. 13/61. Except the 1st defendant firm, none of the other defendants appeared in Court on September 25, 1961 when the suit was called. Hence, the defendants 2 to 7 were set exparte and a decree as prayed for by the plaintiff was passed on that date against all the defendants. The defendants 2 & 3 riled I. A. No. 101/62 and the 5th defendant filed LA No. 97/62 for setting aside the ex-parte decree I.A. Nos. 101/62 and 97/62 filed by the defendants 2,3 and 5 were dismissed by the trial court. The High Court allowed A.A.O. Nos. 198/63 and 317/63 on 26-9-66 and restored the suit as against those defendants on condition that each one of them deposits in the trial court to the credit of the suit a sum of Rs.2,200/- within three months from the date of the order. Pursuant to the orders of the High Court, the suit was restored to the file of the District Court, Visakhapatnam. Thereafter the suit was transferred for trial to the newly constituted Sub Court at Vizianagaram having territorial Jurisdiction to try it, as the cause of action arose at Vizianagaram and was numbered as O.S. No. 17 of 67. The execution proceedings to execute the ex-parte decree against the appellant herein and some other defendants were initiated by the decree-holder in the Sub Court, Vizianagaram. The appellant herein filed I. A No. 286/69 on 28-8-1969 for setting aside the exparte decree against him on the ground'that he was away from his place and he came to know of the passing of the exparte decree only on 24-8-1969 and the delay was not due to his negligence and he would be put to irreparable loss and injury if the petition was not ordered. The application was dismissed by the trial court on 10-12-1970 holding that there was no valid or justifiable ground to set aside the exparte decree. The 7th defendant also filed LA. No. 243/69 to set aside the exparte decree against him but it was dismissed on 10-12-1970 on the ground that LA. No. 286/69 filed by the 4th defendant was dismissed A.A.O No. 266/71 preferred by him against the order of the court below was allowed by this court on 6-10-72 and the LA. No.243/69 was remanded to the lower court for disposal on merits. Against the order of dismissal of the appellant s application by the lower court, he preferred C.M.A.No.80 of 71 which was dismissed by our learned brother Ramachandra Rao J, on 28-2-1972. He agreed with the trial court that the appellant was aware of the passing of the ex-parte decree and there is no material to hold that he came to know of the decree only on 24-8-69 Further it was held that the application before the Sub Court, Viziaaagmm was not maiaatainable as it was the District Court, Visakhapatnam but not the Sub Court, Vizianagaram that passed the decree sought to be set aside. Hence this LPA.

(3.) Miss. Lakshmi Devi, the learned counsel for the appellant contended before us that I.A. No. 286/69 before the transferee court was maintainable in veiw of the provisions of sec. 150, Civil Procedure Code, that the ex-parte decree is joint and indivisible and it should have been set aside in its entirety in the applications preferred by the other defendants, even though no separate application has been filed by the appellant herein as the proviso to Order 9, Rule 13 CPC. would be attracted and even on merits, this is a fit case for setting aside the ex-parte decree.