KUPPIREDDIGARI LINGAREDDI Vs. PANDURU GURU SINGH

JUDGEMENT

(1.) IT is unfortunate that the respondent does not appear, but on the material before me I must hold that the lower Court's order is wrong. After some witnesses had been examined, the case was adjourned to 26 February 1935. On that day, as the order paper shows, the defendant did not appear and his pleader reported that he had no instructions, the Special Deputy Collector made a note to the effect that judgment was reserved. Immediately the defendant came to Court and filed a petition supported by an affidavit, praying that the ex parte decree passed against him should be set aside. In his affidavit he says that he had gone to Tirupathi in order to fetch his vakil and by the time he could attend Court along with his witnesses, an ex parte decree had been passed. IT is obvious that the defendant filed this petition under the mistaken belief that a decree had already been passed.

(2.) IN fact, judgment was delivered on a subsequent day, namely, 15 March 1935, and it recites that the defendant had been declared ex parte on 26 February. It is difficult to understand what happened subsequently, but the defendant apparently filed no petition after the date of the decree for setting it aside. His previous petition dated 26 February 1935 seems to have been treated as an application made to set aside the decree and the lower Court made the following order upon it on 30 March 1935: "As the suit was not decided ex parte, no petition lies for restoration. Petition dismissed". There can be no doubt, that in the circumstances I should regard, as the lower Court has done, the petition of 26 February, as one filed for the setting aside of the ex parte decree. The defendant was declared ex parte as the judgment itself shows and Order 17, Rule 2, Civil P.C, becomes applicable. The effect of that provision is to apply the procedure laid down in Order 9 to cases where there is default of appearance at an adjourned hearing. The lower Court therefore, having declared the defendant ex parte, is wrong in saying that no petition lies for the setting aside of the ex parte decree. I am satisfied that the defendant had sufficient grounds for not appearing. The lower Court's order is reversed and the civil revision petition is allowed, but I make no order as to costs. The ex parte decree is sat aside and the lower Court is directed to try the suit and dispose of it on its merits.