RAM NARAYAN SHAW Vs. SUMERA GOALI

JUDGEMENT

(1.) Three persons filed a Misc. case under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed in Money Suit No 78 of 1973. The Misc. case was contested on only one ground that the petitioner had no locus standi to file the Misc. case The learned Munsif overruled that contention and allowed the misc. case. Hence this revisional application. Two -fold submissions have been made It has been stated that the application under Order 9 Rule 13 of the Code was filed beyond time without making an application under Sec. 5 of the Limitation Act. Secondly, no substitution was made. Petitioners are not the heirs or legal representatives of the deceased defendant, Teku Goala. Consequently, they have no locus standi to file a misc. case within the meaning of rule 13 order 9 of the Code. That rule enjoins that only the defendant can apply for setting aside the ex parte decree. But the defendant did net make any such application.

(2.) It does not appear from the records that any written objection was filed by the plaintiff opposite party. Any way, because of Sec. 3 of the Limitation Act, the court is bound to consider the same. The learned Munsif lost sight of this matter altogether because the Misc. case was filed on 21st February, 1978, and the ex parte decree was passed in the Money Suit on 29 -6 -1977. That Is an illegality for which this order cannot be sustained.

(3.) Secondly, no speaking order was passed. The learned Munsif did not give any reason why he overruled the plaintiff opposite parties contention that the petitioners had no locus standi to file the Misc. case. So, a speaking order is necessary in this respect Sec. 146 of the Code deals with proceedings by or against representatives. That Sec. empowers the legal representatives of the deceased defendant to file such petition under Order 9 Rule 13 of the Code. In view of this section, the objection in this respect cannot stand. But the trial court has not arrived at any proper finding on this.