JHUMARMULL SETHIA Vs. CHAMPALAL BOTHRA

JUDGEMENT

(1.) The question that calls for decision in this Rule is whether a petition and an accompanying Vokalatnama, initially signed by a person not legally authorised to sign for the defendant, can be validated by the signature of the defendant himself at a later stage of the proceeding and when so signed can relate back to the date of the presentation of the petition.

(2.) Admittedly there was an ex parte decree passed against the defendant opposite party, as far back as March 12, 1952. Over six years after the passing of the ex parte decree, the defendant filed an application under Order 9, Rule 13 of the Code of Civil Procedure praying that the ex parte decree be set aside. There was the usual pleading that the defendant was not aware of the filing of the suit and that summons had not been served on him and therefore he could not contest the suit. The petition and the Vokalatnama, which was filed along with the petition, were not signed by the defendant himself but by his constituted attorney, in whose favour a power-of-attorney had been executed in Pakistan. The aforesaid power was not authenticated before the Indian authorities and therefore was of no value in India. The signature on the petition and the Vokalatnama, therefore, cannot be treated as the signature of the defendant made by his authorised agent or constituted attorney.

(3.) When this matter came to the notice of the Court below, during the course of the hearing of the application under Order 9, Rule 13 of the Code of Civil Procedure, the Court below allowed the defendant to sign the petition and the Vokalatnama on September 30, 1958. The trial Court thereafter came to the conclusion that there had been no service of summons on the defendant and in that view of the matter set aside the ex parte decree and restored the suit. The order setting aside the decree is being contested in this Rule.