Posted On by &filed under High Court, Madras High Court.

Madras High Court
Firm Of R.B. Poddar (Boddar) And … vs D.D. Thathachariar And Ors. on 21 September, 1927
Equivalent citations: AIR 1928 Mad 234
Author: Wallace


Wallace, J.

1. There are two points which require elucidation before this civil revision petition can be settled;

1. Whether the application to set aside the decree is not out of time, having been presented more than 30 days from the date of the ex-parte decree.

2. Whether the pleader who reported no instructions in the suit filed a fresh vakalat before he appeared to put in the application to set aside the ex-parte decree.

2. The lower Court will submit findings on these points. Evidence may be taken on the first point, if parties desire, as the point seems to have been overlooked until now. (The findings were accordingly submitted and then the following judgment was delivered.)


3. The findings are that the application to set aside the ex-parte decree was in time and that a fresh vakalat was put in with the application to set aside the ex-parte decree. I accept them. The finding on the second point shows that the pleader did not continue to act on his original vakalat after he reported no instructions in the suit. On the facts therefore, I must hold following the Full Bench cases in Pichamma v. Sreeramulu [1918] 41 Mad. 286 and Manickam Pillai v. Bathumma A.I.R. 1925 Mad. 21, that the party was absent and, therefore, the decree, though on the merits was nevertheless an ex-parte decree. A ruling of a single judge of this Court in Pahaniandi v. Naku A.I.R. 1927 Mad. 109, subsequent to Manickam Pillai v. Bathummal A.I.R. 1925 Mad. 21, seems to me, if I may say so, with respect, contrary to the Full Bench rulings. There is, therefore, no error of law in the proceedings of the lower Court and I dismiss the petition. Costs here to be costs in the cause.

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