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2013 DIGILAW 2671 (MAD)

Senthamarai Kannan v. Neelaveni Ammal

2013-07-26

K.RAVICHANDRA BAABU

body2013
Judgment :- 1. These two civil revision petitions are filed by the defendant in a suit for recovery of money based on a promissory note alleged to have been executed by him. He is aggrieved against the common order passed by the court below in dismissing the unnumbered applications filed by him seeking to condone the delay and also seeking to set aside the exparte decree passed in the said suit. The applications were rejected by the court below by holding that they are not maintainable in view of the fact that the decree passed against the petitioner is not an exparte decree but on the other hand, the one passed on merits after proceeding to decide the matter under Order 17 Rule 2 and 3 C.P.C. 2. Heard the learned counsel for the petitioner and perused the order passed by the court below. 3. I am of the view that the court below has rightly rejected the application filed by the petitioner as the remedy is only by way of filing a regular appeal against the said judgment and decree and not to file an application under Order 9 Rule 13 C.P.C. 4. The following facts and circumtances would justify my conclusion: The suit was filed on 25.09.2006. The petitioner entered appearance through his counsel on 17.04.2007 and filed his written statement on 09.08.2007. The suit was again posted in the special list on 09.02.2010. On that day, the plaintiff was present and let in her evidence. However, the petitioner/defendant was not present. Based on the evidence let in by the plaintiff, an exparte decree came to be passed on the said day. However, the same was set aside subsequently on an application filed by the petitioner. Again on 29.11.2010, the plaintiff let in her evidence and on 06.12.2010, the defendant counsel cross-examined the plaintiff. Consequently, the plaintiff side was closed. W hen the matter was posted on 13.12.2010 for defendant side evidence, instead of letting in evidence, the defendant filed an application under Order 11 Rule 14 C.P.C. seeking for production of certain documents. The said application was also dismissed on 24.01.2011. Thereafter, the matter was posted for letting in evidence by the defendant. Again, he filed another application to stay the trial of the suit. The said application was dismissed on 01.04.2011. The petitioner did not challenge the said order. The said application was also dismissed on 24.01.2011. Thereafter, the matter was posted for letting in evidence by the defendant. Again, he filed another application to stay the trial of the suit. The said application was dismissed on 01.04.2011. The petitioner did not challenge the said order. Thereafter, several adjournments were granted to the defendant to let in evidence, which he has not utilised. Consequently, after closing the defendant side evidence, the suit was posted for argument on 21.04.2011. However, no argument was advanced on that day and on the other hand, an adjournment was sought for by the defendant. The court below granted time on 6 occasions. Consequently, on 23.06.2011, when the matter was listed, the defendant filed an application under Order 7 Rule 11 C.P.C. to reject the plaint. That was also dismissed on 27.07.2011. The petitioner challenged the said order before this court by filing civil revision petition and that also came to be dismissed on 23.08.2011. Thereafter, the trial court passed its judgment and decree on 07.09.2011. 5. A bare perusal of the judgment and decree would show that it is not an exparte decree and on the other hand, it has been passed on merits. The court below has rightly exercised its power by passing such decree as contemplated under Order 17 Rule 13 C.P.C. Thus, when the said decree is not an exparte decree, the petitioner is not entitled to file any application under Order 9 Rule 13 C.P.C., seeking to set aside the same as if it is an exparte decree. Thus, the court below has rightly found that the application is not maintainable and rejected the same. I find no irregularity or infirmity in the order passed by the court below. Accordingly, these civil revision petitions are dismissed. No costs. The connected miscellaneous petition is dismissed.