This revision is directed against the order dated 22.10.2010 in CFR (IA) No.3165 of 2010 in OS No.338 of 2009 on the file of the Principal Junior Civil Judge, Gudur, wherein the said application filed by the petitioner herein under 9, Rule 13 CPC for setting aside the ex parte decree dated 21.7.2010 was rejected, as not maintainable.

2. Heard both sides. Perused the record.

3. The respondent herein filed suit against the petitioner for recovery of a sum of Rs.97,245/- due under a pronote dated 12.3.2008 said to have been executed by the petitioner herein for borrowal of Rs.70,000/-. The petitioner herein filed written statement denying the borrowal and execution of the suit pronote and contending that the defendant borrowed only Rs. I 0,000/fTom the plaintiff in October 2000 and at the instance of the plaintiff, he signed on a blank pronote and that the suit pronote was fabricated by the plaintiff as if he borrowed Rs.70,000/- on 12.3.2008. The trial Court framed necessary issues. During the course of trial, the plaintiff was examined as PW 1 and the attestor of the suit pronote was examined as PW2 and Exs.A 1 to A3 were marked on behalf of the plaintiff. No oral or documentary evidence was adduced by the defendant. After hearing both sides, the learned Junior Civil Judge by judgment dated 21.7.20 I 0 decreed the suit for a sum of Rs.97,245/-. Thereafter, the defendant filed the present un-numbered application CFR No.3165 of 2010 on 18.8.2010 under Order 9, Rule 13 CPC praying the Court to set aside the ex parte decree dated 21.7.2010.

4. In the affidavit filed in support of the application, the petitioner stated that after closure of the plaintiffs evidence, the defendant was also examined as DW1 and the matter was coming up for cross-examination and it stood posted to 15.7.2010 as last chance and on that day as there was no representation on his behalf, the evidence was closed and the matter was posted to 16.7.20 I 0 for arguments and thereafter on 21.7.2010 the judgment was pronounced. It is further pleaded' by the petitioner as follows: "I submit I am suffering ill health and could not attend for my Counsel and informed the same, to represent not ready. But the concerned advocate did not represent the same. Now I am under the impression till today and two days back, when I approached my Counsel he informed the same".

5. The above averments in the affidavit do not make any sense nor does it carry any meaning. Be that as it. may, assuming for a moment that the petitioner intended to plead that owing to ,illness he could not attend the Court, he has not filed any medical certificate in proof of the alleged illness. Even the affidavit does not disclose the nature of the illness or period during which the petitioner was suffering from any such illness. The plea of the petitioner that he could not attend the Court and face the cross examination owing to illness, therefore remains totally unsubstantiated.

6. That apart, the respondent opposed the application on the ground that the judgment and decree passed were not ex parte and they were delivered on merits and therefore, the petition filed under Order 9, Rule 13 CPC is not maintainable.

7. A perusal of the copy of the judgment would disclose that the defendant was nowhere set ex parte. In the preamble of the judgment it is noted that the defendant was represented by Counsel, Sri C. Raghunadha Reddy till the date of the judgment. In Para 6 of the judgment, it is noted that the arguments of the learned Counsel for the plaintiff and the defendant were also heard. The judgment would also disclose that the trial Court after extracting all pleadings of both parties and stating the issues framed in the suit and the evidence oral and documentary adduced by the plaintiff, has noted that on behalf of the defendant, no oral or documentary evidence was adduced. However, arguments of both sides were heard and distinct findings on the issues were recorded after discussing the evidence pert