MEKALA RAMASUBBAIAH Vs. POTULA YESEPU

JUDGEMENT

(1.) THIS Court ordered Notice Before Admission on 13. 03. 2008 and granted interim stay for a limited period, which is being extended from time to time. Sri Balagopal entered appearance on behalf of the respondents.

(2.) THE respondents in the revision petition filed C. M. P. No. 3057 of 2008 with a prayer to vacate the interim stay granted by this Court. At the stage of hearing of the application to vacate the interim stay, Sri Rathangapani Reddy, learned counsel representing the revision petitioner and Sri Balagopal, representing the respondents made elaborate submissions and also made a further request to dispose of the revision petition itself finally. Hence, the revision petition is being disposed of finally by this Court with the consent of both the counsel.

(3.) SRI Rathangapani Reddy, the learned counsel representing the revision petitioner would maintain that in the facts and circumstances of the case, the decree made by the learned Additional Senior Civil Judge, Nandyal, (Fast Track Court) to be taken as a decree made on merits and the only remedy available to the respondents/defendants may be to prefer an appeal and the application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) is not maintainable. The learned counsel would also maintain that the respondents/defendants contested the suit by filing written statement and they had cross-examined the plaintiff's witnesses as well, but failed to adduce their evidence in spite of repeated adjournments and this fact had also been recorded by the learned Additional Senior Civil Judge, Nandyal (FTC ). Even in this view of the matter, the application, which had been filed to set aside the ex parte decree being a misconceived remedy, the learned Additional Senior Civil Judge, nandyal (FTC) should have dismissed the application instead of allowing the same on condition of the defendants paying Rs. 250/- to the plaintiff or his counsel and also on a further condition that the defendant should get ready for trial and produce all the evidence on 03. 03. 2008, failing which the petition shall stand dismissed. The learned counsel also had taken this Court through the language employed under Order XVII Rule 2 and Order XVII Rule 3 of the Code and would maintain that the learned Additional Senior Civil Judge, Nandyal (FTC) had not appreciated these provisions in proper perspective and hence the impugned order may be set aside and the revision petition to be allowed. The learned counsel also placed strong reliance on certain decisions to substantiate his submissions.