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Kojjarapu Venkata Rao vs Rajapudi Nageswara Rao And Others on 15 July, 1999

Andhra High Court
Kojjarapu Venkata Rao vs Rajapudi Nageswara Rao And Others on 15 July, 1999
Equivalent citations: 1999 (5) ALD 478, 1999 (5) ALT 359
Bench: G Bikshapathy


JUDGMENT

1. The CRP is filed against the orders of the learned District Munsif, Pithapuram in IA No.18 of 1997 in OS No. 106 of 1996 dated 10-4-1997.

2. The petitioner is the defendant. Plaintiffs filed suit for declaration that the entries in Pattedar Pass Book were erroneous and false and for consequential direction for rectification of Records of Rights after proper enquiry. The Court fixed the date of appearance of defendant on 7-11-1996 and accordingly summons were issued and served. But, however, the matter was adjourned to 30-12-1996 for filing the written statement.

3. It is the case of the petitioner that the written statement was prepared, signed and was handed over to the Counsel. But, however, on the said date, the Counsel was not present in the Court when the matter was called and he could not file the written statement which was available with him. Therefore, the lower Court set the defendant ex parte. On 31-12-1996, the defendant filed an application IA No.18 of 1997 to set aside the ex parte order and the said IA wasdismissed on 10-4-1997. Finally, the suit was decreed ex parte with costs on29-4-1997. The Defendant aggrieved by the order passed in IA No.18 of 1997 filed the present CRP on 14-7-1997 challenging the said orders. But, however, it is sated that the defendant filed an application on 11-4-1997 for copy application and the same was furnished by the lower Court on 26-4-1997. It is submitted that the order of the lower Court in dismissing the IA No.18 of 1997 refusing to set aside the order setting the defendant ex parte is illegal and contrary to law. The lower Court committed an error in dismissing the application. However, a preliminary objection was taken by the learned Counsel for the respondents/plaintiffs that the CRP is not maintainable as the lower Court even prior to the filing of CRP had already decreed the suit on 29-4-1997. As on the date the suit was decreed, petitioner did not file any revision before this Court and no revision can be said to be pending. Under these circumstances, he submits that it is open for him to take appropriate steps by filing an appeal either under Section 96 CPC or file an application under Order 9, Rule 13 CPC to set aside the ex parte decree. The order passed by the lower Court in IA No. 18 of 1997 cannot be assailed as the revision became infructuous consequent on the decree having been passed by the lower Court on 29-4-1997.

4. The learned Counsel for the petitioner, however, submits that in this revision orders of the lower Court in IA No.18 of 1997 were challenged. Any proceedings subsequent to the order passed in IA No.18 of 1997 are to be treated as dependant orders and if IA No.18 of 1997 is set aside, then all the subsequent proceedings consequent on the dismissal of the IA shall fall to ground. Therefore, he submits that the CRP is maintainable and that the order of the lower Court in IA No.18 of 1997 is liable to be set aside.

5. The crucial and important issue that arises for consideration is whether the CRP is maintainable?

6. The learned Counsel reiterating his stand submits that since the CRP is directed against the orders refusing to set aside the orders setting the defendant ex parte was dismissed, the subsequent proceedings if any are to be treated as subject to the orders that may be passed in the CRP and such a petition is maintainable. It is necessary to refer to certain decisions cited at the bar for proper appreciation of the matter.

7. In Kota Kanakayya v. Kamepalli Lakshamayya, , the learned Judge, observed that there was no provision anywhere in the Code of Civil Procedure that takes away the right of party to take appeal from a preliminary decree or order of remand, if a final decree happened to be passed in the suit before the appeal against which a preliminary decree or order of remand was presented, nor there was any provision in the Code that an appeal against the preliminary decree or order of remand properly presented becomes defunct by the passing of a final decree pending the appeal. In this case also challenge to the preliminary decree was pending while the proceedings in the final decree were being taken up by the lower Court. The learned Judge observed as follows:

“The Civil PC of 1908 not only gives an aggrieved party a right of appeal against a preliminary decree or an order of remand in a case where the decree of the appellate Court would have been open to appeal but also imposes this serious disability on a litigant that if he does not prefer an appeal against the preliminary decree or an order of remand, he is thereafter precluded from disputing its correctness in an appeal from the final decree. There is no provision anywhere in the Code that takes away the right of a party to appeal from a preliminary decree or an order of remand, if a final decree happens to be passed in the suit before the appeal against he preliminary decreeor the order of remand is presented. Nor is there any provision in the Code that an appeal against a preliminary decree or an order of remand properly preserved becomes defunct by the passing of a final decree pending the appeal.”

The learned Judge after considering various decisions held as follows:

“The principles of these decisions is that where an order of remand is appealed against and that order is set aside on appeal, the subsequent proceedings conducted in pursuance of the order of remand, are considered to be subordinate and dependant proceedings liable to be superseded by the reversal of the order of remand, which was subject-matter of appeal before the statutory Tribunal.”

It was a case where the preliminary decree was passed by the lower Court which was appealed against and in appeal the matter was remanded to the lower Court for fresh consideration and the said remand order was challenged before the High Court. During the pendency of the challenge to the remand order, the final decree was passed by the lower Court. Under those circumstances, it was held that the orders passed by the appellate Court will supersede the orders passed by the lower Court. The principle behind the issue was that if no appeal is filed against the preliminary decree, he will be precluded from challenging the final decree. Therefore, necessarily, the order was treated as dependant order. In the instant case as already stated is not a dependant order and the defendant was having two alternative options either to file application to set aside the ex parts decree or file a regular appeal. Therefore, the judgment of the Madras High Court is not applicable to the facts of this case.

8. In V. Manickam Pillai v. Mahudam Bathur, AIR 1925 Mad. 209, it was not acase where the maintainability of CRP was in issue. It was a case where the Subordinate Judge dismissed the suit of the plaintiff for default and thereafter on an application it was set aside on certain conditions. The said order was challenged by the defendant in the CRP. It was held that he has no jurisdiction to pass the order. But, however, in the meanwhile it so happened that the trial took place and ultimately the decree was passed on merits. Admittedly, the Revision was pending during the proceedings before the lower Court. Therefore, any orders during the pendency of the revision would be subject to the orders that may be passed in the revision. Obviously, for that reason, the maintainability was not the subject matter before the High Court. Therefore, that decision does not help the petitioner.

9. In Varadarajan v. Muthu Venkata Pathi Reddy, AIR 1953 Mad. 587 (DB), it was a case where the mortgaged properly was brought to sale-and an application in MP No.302 of 1944 was filed on behalf of the Minor 2nd respondent for setting aside the sale under Order 21, Rule 90 CPC and Section 47 of CPC. It was dismissed by the lower Court on 10-7-1945. On 12-7-1945 the sale confirmation order passed by the lower Court. The petitioner filed a petition under Order 9 and Section 151 CPC for setting aside the dismissal order and the same was dismissed as not maintainable. Then he appealed to the High Court in CMA No.447 of 1945. MP No.302 of 1944 was directed to be restored on payment of Rs.500/- costs and the District Judge was directed to dispose of the petition on merits. After complying the order of the High Court, Ml1 No.302 of 1944 was restored. Thereafter, he filed MP No.187 of 1946 for vacating the order of confirmation of sale made on 12-7-1945. Again on 31-8-1946 another petition was filed in MP No.213 of 1946 for setting aside the sale. All the three petitions were dismissed. Therefore, CMA No.117 of 1947 was filed against the ordersin MP No.302 of 1944, CMA No.355 of 1947 against MP No.187 of 1946 CRP No.390 of 1947 against MP No.213 of 1946. The High Court held that the orders dismissing MP No.302 of 1944 was illegal and consequently set aside the order. Thereafter effect of confirmation of sale made by the lower Court on 12-7-1945 was considered by the High Court. The Division Bench after considering the judgment in Venkatanarasimham v. Nagoji Rao, AIR 1946 Mad. 344, Charitter Shukul v. lal Behari Singh, AIR 1934 All. 433, Mulhu Korakki Chetli v. Mohammad Madaf Ammal, AIR 1920 Mad. 1 (F.B.), Shama Purshad v. Hurro Purshad, 10 Moo Ind. App. 203 (PC) (D), held that the order of confirmation is a dependant order. Such an order of confirmation may be treated as ineffective or automatically vacated or even may be considered as null and viod. The net result being such order continuous to have no legal effect or force. Thus, the Division Bench held that the conformation would cease to have any legal effect, The question that would arise is whether the orders and decrees which are subordinate and dependant upon earlier orders and decrees if set aside, whether the latter orders would remain in force is a question. The Division Bench held that when once the earlier orders are reversed or superseded, the subsequent subordinate and dependant orders would also cease to have a legal effect. In this case the application to set aside the default order was dismissed on 10-7-1945. This process was adopted in view of the Rule 92 which inter alia states that if an application under Order 21, Rule 90 is disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Therefore, the direct consequence of dismissal of an application under Order 9 CPC is that the Court shall have to make an order confirming the sale. Thus, there is no alternative for the Court to except to make an order of confirmation. This statutory compulsions are not present in Order 9, Rule 6 CPC. Rule 6(a) of CPC only saysthat the Court may make an order that the suit be heard ex parte and under Rule 7 if the defendant appears and places before the Court, good cause for his previous nonappearance, the Court may pass orders permitting the defendant to be heard, as if he had appeared on that day for an appearance. In the instant case, whether the order passed is a subsequent dependant order. Mere setting the defendant ex parts would not result in automatic decree. Still it is always open for the defendant to participate in the enquiry and contest the matter, therefore, the decree passed subsequent to setting the defendants ex parte cannot be said to be a dependant order as the direct consequences will not result in passing of decree. Thus, the case on hand is distinguishable.

10. In Jakkampati Rangaiuh v. Kunala Peddireddi, AIR 1957 AP 330, the revision petitioner filed a suit on a mortgage and obtained a preliminary decree for fore closure on 31-1-1951. The respondent did not pay the money within the time prescribed by the lower Court and applied for extension of time. Even within the extended time, he did not pay the amount. When another application was made for further extension, the Court refused to extend the time and made a final decree for foreclosure. The respondent preferred an appeal against order of the learned District Munsif refusing to grant further time, but he did not prefer any appeal against the final decree. Before the learned District Judge, preliminary objection was raised to the effect that no appeal lie against an order to refuse to extend the time as the said order became merged in the final decree. The learned District Judge rejected the preliminary objection and allowed the appeal to give further time against which the revision petition was filed before the High Court. The learned Judge, after referring to the decision of the Division Bench in Venkatarama Ayyar v. Unnamalai Ammal, and another Division Bench decision in Varadarajan ‘s case (supra), observed thus:

“I cannot read into Section 105 by implication words which are not there or construe the section in such a way as to deprive a person of a statutory right of appeal conferred expressly by the other provisions of the Act. It may also be pointed out that Viswanatha Sastri J, whose judgment was approved in toto by Satyanarayana Rao and Raghava Rao, JJ., pointed out the provisions of Section 105(2), in the course of the judgment, did not base his judgment on that provision but mainly on the ground that a statutory right of appeal could not be defeated by the passing of a final decree.”

The effect of appellate order on the final decree was considered, the learned Judge held that it is a well settled principle of law that certain orders and decrees which are subordinate and dependant upon earlier orders and decrees could only remain in force so long as the order or decree on which they were dependant or not reversed or superseded. The question, therefore, was whether the final decree made was dependant for its validity on the order refusing to extend the time. If the learned District Munsif did not refuse to extend the time, which could not have made the final decree. If the order refusing to extend the time was set aside in appeal, the final decree would not obviously stand for it was made on the basis of the order which was subsequently set aside. In that view, it was observed that when the District Court set aside the order refusing to extend the time under order 34 Rule 2 CPC the final decree which was made on the basis of the wrong order being a dependant one fell with it. In this case, the order passed under Order 34, Rule 2 CPC refusing to extend the time, an appeal was preferred and the appeal was allowed consequently it was held that the subsequentfinal decree consequent on the refusal to extend the time would also fall to ground. But, in the instant case, it was only a revision which was preferred and revisional jurisdiction is quite different than the appellate jurisdiction. Therefore, it was not a case where the revision was held to be incompetent and this case stands on a different footing.

11. Reference was also made to the decision of the Division Bench of the Delhi High Court in the case reported in Siri Krishan Bhardwaj v. Manohar Lal Gupta, , wherein it was called upon to decide whether any suit brought under Order 37 CPC if leave to appear and defend the suit was not granted to a defendant and the decree was passed, would the order of the trial Court refusing to leave appear and defend the suit be revisable or whether the defendant in such a case must file an appeal against the decree and in that appeal challenged the order refusing him leave to appear and defend the suit either by invoking the provisions of Section 105 of CPC or otherwise. The matter came before the Division Bench, as two learned Judges of Delhi High Court took conflicting views one holding revision was not maintainable and another holding contrary. The Division Bench while distinguishing the difference between the appeals and revisions and observed that right of appeal carries with it a right of rehearing on law as well as on fact unless a statute conferring the right of appeal limits the re-hearing only to the question of law. In a revision, the High Court is only required to satisfy that a particular case has been decided according to law or that a particular order does not suffer from infirmity, having been passed without jurisdiction, in excess of jurisdiction, in denial of jurisdiction or is otherwise not illegal or suffering from material irregularity. Interpreting the phrase in Section 115 CPC “any case which has been decided”, the Division bench held that it would be revisable. The Division Benchfurther held that the order refusing to grant leave to appear and did not finally dispose of the suit and an appeal was competent from the decree that has been passed, but” it must be kept in view that the effect of the impugned order as given in Order 37, Rule 2(2) CPC namely that in a case leave to defend and appear is not granted, the allegation in the plaint shall be deemed to be admitted. Therefore, the order like the present one has far reaching consequences and would clearly fall within the ambit of phrase “in any case which has been decided”. So as far as the defendant is concerned, the controversy has really come to an end. Therefore, the Division Bench held that irrespective of the decree that has been passed a revision was competent. The effect of refusal to leave to defend was noted by the Division Bench and it held that:

“this means that the decree follows as a consequent order of earlier order to grant leave to appear and defend, in my opinion in a subsequent order even if it be a decree is a consequential order to earlier order and the earlier order is set aside the later order must also fall and direction to that effect have to be given”.

12. The case on hand did not fall under Order 37 and the circumstances under which revision would lie was set out by the Division Bench namely that refusal to grant leave to defend results in deeming admission of the averments of the plaint averments and decree would automatically follow. That regour would not apply to this case as the defendant was set ex parte and thereafter an ex parte decree was passed. The Defendant was having right to file an application under Order 9 Rule 13 CPC or regular appeal under Section 96 CPC.

13. In Radhamoni Padhiari v. Tangudu Jaganatham, AIR1978 Ori. 209, time was granted by the Court to file written statement till 1st February, 1977. An application for further extension was rejected on 1st February, 1977 and suit was posted to 8-2-1977. On that day, the defendant was set ex parte and suit was posted to 17-2-1977 for ex parte hearing. On that day an application under Order 9, Rule 7 CPC was filed ‘which the trial Court has rejected on 2-3-1977. Before the Civil Revision Petition was filed in the High Court, the suit was decreed ex parts on 13-5-1977. On a Civil Revision Petition, having been filed rejecting the application to setting the defendants ex parte an objection was taken contending that the Civil Revision Petition was not maintainable. The learned single Judge, held that the legal position was settled beyond doubt that even if a defendant does not file a written statement, he was entitled to participate in the proceedings without any written plea. On 2-3-1977 when the application was rejected, the trial Court should have made it clear that even if on the facts of the case, the defendant was not being relegated to the position as on 1-2-1977. She was free to participate in the proceedings, cross-examine the witnesses of the plaintiff and even lead evidence to meet the evidence led by the adversary. When the defendant came forward in the proceedings, the lower Court was not justified in keeping her out. On that ground, the revision was permitted. But, in the instant case, it is not the case of the defendant that he was shut out from participating in the proceedings. He never made any attempt to participate in the suit proceedings. Therefore, this case has no application.

14. Kantipudi Lalithal Lakshmi Manohar Saraswathi v. Kantipudi Ramakrishan, 1981 (2) High Court Notes 412, was a case, where a suit was filed by the plaintiff for recovery of certain sum on the foot of a promissory note invoking summary jurisdiction under Order 37 CPC. The defendant applied leave for defence and the same was granted on 15-12-1980, subject to the condition that the defendantdeposits half the suit costs within 15 days therefrom. The defendant filed a petition to review the order dated 15-12-1980 and the same was dismissed on 2-2-1981. the validity of the said order was assailed In the CRP. But, however, the suit was decreed on 17-2-1981. The learned Judge held that the revision was maintainable holding that Order 37, Rule 4 CPC provided for setting aside the decree under special circumstances and gives the power to the same Court which passed the decree to set aside the same if it appears reasonable to do so. This provision did not affect the power of the appellate or revisional Court to set aside the decree when the original order in, a consequences of which a decree was passed was bad. From the judgment, it is not known on what date, the revision was filed, whether it was filed before passing the decree or after the decree was passed. Admittedly, in the instant case, when the decree was passed by the lower Court, the petitioner did not file any Civil Revision Petition, it is only much later to the passing of the decree, the Civil Revision Petition was filed. It is also stated that neither any application was filed under Order 9, Rule 13 CPC or the appeal under Section 96 CPC.

15. In G. Ramegowda v. The Special Land Acquisition Officer, Bangalore, , it was a case where the Land Acquisition Officer filed an appeal against the common award of the civil Court, as there was a steep enhancement of compensation. As there was delay, applications were filed for condonation of delay. The Division Bench of the High Court condoned the delay against which the matter was carried to the Supreme Court by the claimants in civil Appeals. During the pendency of the appeal, the appeals were heard by the High Court and the compensation was reduced. When the appeals came up for consideration, one of the contention before the Supreme Court was that during the pendency of the Civil Appeal, the High Court had heard anddisposed of the appeals on the merits substantially reducing the compensation against which the appellants have already preferred Special Leave Petitions and therefore the proceedings do not survive. The Supreme Court held that:

“We might, perhaps, deal with the latter submission of Shri Veerappa first. The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called ‘dependant-orders’ and if the order excusing the delays is itself set aside in these appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory. The submission of Shri Veerappa is, therefore, insubstantial”.

In this case, the Civil Appeals were pending before the Supreme Court, when the matter was being heard by the High Court. In such circumstances, it was held that they were dependant orders, on the ground that if the orders excusing the delays were set aside in the appeals, the further exercise made by the High Court finally disposing of the Appeals would be rendered nugatory. More over, against the orders passed by the High Court, Special Leave Petitions were already preferred by the land owners. Therefore any orders passed consequent on condoning the delay was treated as a dependant order and if the said order is set aside the dependent order would became nugatory. Admittedly, the High Court after entertaining the appeal reduced the compensation substantially and the said order of the High Court condoning the delay was confirmed. Therefore, the order of the High Court passed subsequent to the condonation of the delay was not disturbed. More over, the situation was different as the civil appeals were admittedlypending when the matter was being adjudicated in the High Court. In the instant case, when the suit was decreed ex parte, no appeals were pending and the order’ rejecting the application to set aside the ex parte order was not pending in any revision. Therefore, the judgment of the Supreme Court has no application to the facts of this case.

16. In an unreported judgment of this Court in Gunda Ramaswamy v. Suda China Bhadraiah & others, CRP No.3139/1983, dated 12-4-1984, Jagannadha Rao, J., (as he then was) after referring to various decisions held thus:

“From the aforesaid decisions it is clear that if pending an appeal or revision in this Court against the decree or order of a Subordinate Court the subsequent proceedings are permitted to go on in the lower Court which would not have otherwise been permitted to go on if the decision of the Subordinate Court had been in favour of the appellant or the revision petitioner, as the case may be, the appellate or revisional Court does not loose its jurisdiction to entertain the appeal or revision and ifnecessary to set aside the decree or order of the Subordinate Court merely because of the fact that the subsequent proceedings have been permitted to go on in the Subordinate Court during the pendency of the appeal or revision.”

But, in the instant case, no revision was pending when the suit was decreed. If pending the revision, suit is decreed, then the principle would apply to this case. Moreover, the ex parte decree was allowed to become final, as it was not challenged in appeal or an application was made under Order 9, Rule 13 CPC to set aside the ex parte decree.

17. However, the issue on hand was directly before the Mysore High Court inT.C. Malleshappa v. Firm of Sha Veerchand Pratapmal, AIR 1965 Mysore 303, the defendant therein was set ex parte on 5-1-1961. The evidence was recorded and the judgment was pronounced on 19-1-1961. But, on 18-1-1961 itself, the defendant applied to the Court to set aside the order declaring him ex parte and permit him to contest the suit on merits. The petition came up for hearing and it was dismissed on 18-1-1961 itself. Against the order dismissing the application, the defendant filed revision on 6-11-1963. It was held by the learned single Judge as follows;

“That the revisional powers of the High Court can be invoked only when there are no other sufficient remedies open for the aggrieved party. As the ex parte decree in this case had been passed the next day on which the impugned order was passed it was open to the defendant either to apply under Order 9, Rule 13 to set aside the ex parte decree or prefer an appeal from the ex parte decree but instead of resorting to these remedies which were open to him under the Code he applied in revision against the order passed under Order 9, Rule 7 refusing leave to defend the suit by setting aside the ex parte proceedings. In such circumstances the revision filed against the interlocutory order under Order 9, Rule 7 could not be entertained at such a late stage. To interfere at this stage and to set aside the order sought to be revised, will serve no useful purpose unless it will have the effect of setting aside the decree also. To hold that the order will have such an effect will tantamount to abrogating the provisions of the Code of Civil Procedure under which decrees passed in Courts including those passed ex parte can be set aside only by resorting to the appropriate remedies provided in the Code and not otherwise. The fact that it would now be too late for availing those remedies or that the revision was filed under mistaken advice of hisCounsel would be no ground for the entertainment of the revision.

(ii) that the ex-parte proceedings could be set aside only by compliance with the provisions of Order 9, Rule 7 and not by invoking the inherent powers of Court under Section 151 (Arjun Siugh v. Mohindra Kumar, , Sangram Singh v. Election Tribunal, ).”

18. Thus, the following principles would emerge from the decisions referred to above:

(1) If an order or decree of the lower Court is carried in appeal or revision before the higher Court and any proceedings that takes place in the Subordinate Court pending appeal or revision, the proceedings of the lower Court shall be subject to the orders that may be passed by the High Courts.

(2) That as on the date of filing the appeal or revision, if no proceeding are pending in the lower Court, the proceedings already passed by the lower Court shall continue to be effective until they are set aside by the competent Court.

(3) The principle of law that certain orders and decrees which are subordinate and dependant upon earlier orders and decrees could only remain inforce so long as the orders or decrees on which they were dependant are not reversed or superseded will only apply if the impact on such subordinate and dependant orders are immediate and inevitable giving no scope for the Court except to pass these orders.

(4) Whether it is a subordinate and independent or consequential order depends on the nature of the order and the provisions under which the orders are passed. There cannot be general principle on this issue. Each case has to be decided on its own merits.

19. Let us apply the said principles to the case on hand. The defendant was set ex parte on 31-12-1996 and thereafter ex parte proceedings were initiated and an ex parte decree was passed on 29-4-1997. Passing of an ex parte decree is not automatic and it is always open for the Defendant to cross-examine the witnesses on behalf of the plaintiff and also he is permitted to led evidence in defence of his case. Therefore, passing a decree cannot be said to be a direct consequence of setting the defendant ex parte. It is a remote event and he did not maintain close and inseparable proximity to the event of setting the defendant ex parte. Thus, the ex parte decree cannot be treated as dependant order. More over, after the stage of Order 9, Rule 7 CPC one more opportunity was provided to the defendant in case of an ex-parte decree. It is always open for the defendant to file and application under Order 9 Rule 13 CPC for setting aside ex parte decree. If he satisfies the Court that he was prevented by sufficient cause from appearing when the suit was called on for hearing, the Court may set aside the ex parte decree. Thus, even if the defendant fails to succeed under Order 9 Rule 7 CPC the entire ex parte decree can also be challenged under Order 9, Rule 13 CPC if he assigns sufficient cause. Admittedly, after the defendant was set ex parte he did not participate in the proceedings. Even the petitioner had not availed this opportunity under Order 9, Rule 13 CPC. The remedy of appeal is also open for the defendant under Section 96 CPC. Therefore, when the alternative and effective remedies are available to the defendant against the ex parte decree consequent on the setting the defendant ex parte, it would not be appropriate for the defendant to resort to revisional proceedings under Section 115 CPC challenging the order refusing to set aside the order setting the defendant exparte. As held by the Mysore High Court in T,C. Malleshappa’s case (supra), the revisional proceedings cannot be resorted to when the appeal remedy is availableconsequent on the passing of an ex parte decree. More over, it is not a case where the revision was pending when the ex parte decree was passed. Revision was filed much later to the ex parte decree. Under these circumstances, I hold that the Revision Petition is not maintainable.

20. Accordingly, the CRP is dismissed as not maintainable. However, I leave it open to the petitioner to take appropriate proceedings as are available under law.

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