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Madras High Court
The Firm Of R.B. Poddar And Co., By … vs D.D. Tatachariar And Ors. on 21 September, 1927
Equivalent citations: 107 Ind Cas 815
Bench: Wallace


ORDER

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

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

3. Time for submission of findings is two weeks after re-opening of this Court after vacation, and for objections ten days.

4. In compliance with the above order the District Munsif of Madura submitted the following.

Findings. The High Court has called for findings on the following two points:

* * * * * *

2. The plaintiff’s Pleader was present and adduced no evidence. Defendants Nos. 2 to 5 (respondents in C.R.P. No. 557 of 1926) and their Pleader were absent.

3. The decree was passed on 25th February, 1926. The petition to set aside the ex parte decree has been presented into Court on 22nd March, 1926, less than 30 days from the date of the decree. This petition was presented originally on 22nd March, 1926, but it was returned thrice for certain defects to be remedied. The last of the returns was made on 15th April, 1926, with a direction to give the full description of the parties in a separate sheet attached thereto if there was no space in the petition itself. And in obedience to this direction, a fresh sheet with the full description of the parties was attached on 20th April, 1926. But the Vakil attached the additional sheet in the form of a petition and dating it on 20th April, 1926, has represented the same along with the original petition; the original petition alone having been stamped. The original petition has evidently not been printed in the High Court printed papers. I find on the first point that the petition to set aside the ex parte decree was presented within 30 days from the date and that it is in time.

4. A fresh vakalat has been filed along with the petition to set aside the ex parte decree by the Pleader who presented the same. The vakalat also is herewith submitted.

5. 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.

6. The finding on the 2nd point shows that the Pleader did not continue to act on his original vakalat after he reported no instructions in the suit.

7. On the facts, therefore, I must hold following the Full Bench cases in Prativadi Bhayankaram Pichamma v. Kamisetti Sree-ramulu 43 Ind. Cas. 566 : (1918) M.W.N. 92 : 41 M. 286 : 23 M.L.T. 1 : 34 M.L.J. 24 (F.B.) and Manickam Pillai v. Mahudum Bathummal 82 Ind. Cas. 102 : 47 M. 819 : 20 L.W. 427 : 47 M.L.J. 398 : (1924) M.W.N. 689 : A.I.R. 1925 Mad. 21 (F.B.), 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 Pazhaniandi v. Naku 99 Ind. Cas. 32 : 51 M.L.J. 684 : A.I.R. 1927 Mad. 109, subsequent to Manickam Pillai v. Mahudum Bathummal 82 Ind. Cas. 102 : 47 M. 819 : 20 L.W. 427 : 47 M.L.J. 398 : (1924) M.W.N. 689 : A.I.R. 1925 Mad. 21 (F.B.), seems to me, if I may say so with respect, contrary to the Full Bench rulings.

8. 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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