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2013 DIGILAW 1278 (MAD)

Banumathi v. K. Karuppusamy

2013-03-07

K.RAVICHANDRA BAABU

body2013
JUDGMENT : 1. This Civil Revision Petition is filed against the order dated 31.07.2009 passed in E.A.No.17 of 2009 in E.P.No.90 of 2008 in O.S.No.27 of 2006 dismissing the application filed by the petitioners herein seeking to set aside the exparte attachment order passed on 09.01.2009. 2. The petitioners herein are the judgment debtors in a suit for recovery of money based on a promissory note. Pursuant to the decree passed in the said suit, the respondent herein filed Execution Petition in which the said exparte order of attachment came to be passed on 09.01.2009. The petitioners herein filed the above application in E.A.No.17 of 2009 immediately within a period of 30 days from the date of the said order and prayed for to set aside the exparte attachment order by contending that the first petitioner, who was taking care of the other two petitioners, was unable to attend the Court on a particular date due to stomach pain and also diahorrea. The said application was rejected by the Court below only by stating that no reason is given for the nonappearance of other two defendants/judgment debtors. It is also stated by the Court below that no stay order from the Appellate Court is placed before the Court by the petitioners. 3. Heard learned counsel appearing for the petitioners as well as learned counsel appearing for the respondent. 4. In a suit for recovery of money, the decree came to be passed against the petitioners herein and thereafter, an execution petition is filed by the respondent to execute the said decree. It is seen that the decree holder sought to attach the properties of the petitioners in execution of such decree. It is also seen that the petitioners herein as respondents in the Execution Petition sought time to file counter. When the matter was taken up on 09.01.2009, the petitioners did not appear and they have also not filed counter. Consequently, the Court below passed an exparte order of attachment. 5. It is not disputed that the petitioners have filed the application to set aside the exparte order within a period of 30 days. It is also not found by the Court below that the reasons stated in the affidavit filed in support of their application with regard to the ailment of the first petitioner is not genuine or false. 5. It is not disputed that the petitioners have filed the application to set aside the exparte order within a period of 30 days. It is also not found by the Court below that the reasons stated in the affidavit filed in support of their application with regard to the ailment of the first petitioner is not genuine or false. The Court below has only rejected the application on the ground that no reason is stated as to why the other two defendants/judgment debtors were not present on the date. Even in the affidavit filed in support of the application, the first petitioner has specifically stated that the other two petitioners are her children and she is only contesting the matter on their behalf. When that being the position, I find that there is no justification on the part of the Court below in rejecting the application on the above-said reason. Moreover, the Court below has also found that no stay order is produced by the petitioners from the Appellate Court. That may not be a ground to reject the application to set aside the exparte order. When the application is filed to set aside the exparte order, the reasons stated in the affidavit has to be seen and when reasons are not found as false or not genuine, the Court below ought to have allowed the application and directed the parties to contest the matter on merit. 6. Accordingly, I find that the petitioners herein are entitled to succeed in the Civil Revision Petition. Consequently, the order passed by the Court below is set aside and E.A.No.17 of 2009 in E.P.No.90 of 2008 in O.S.No.27 of 2006, on the file of the learned Subordinate Judge, Udumalpet stands allowed. This Civil Revision Petition stands allowed. No costs. Consequently, M.P.No.1 of 2009 is closed.