P.B. Suresh Kumar, J.

1. An order dismissing an application to set aside an ex parte decree is under challenge in this appeal. The appellant is a firm, represented by its managing partner.

2. O.S.No.174/2009 on the file of the Court of the Subordinate Judge, Tirur is a suit filed by the respondent for realisation of money from the appellant. When the suit came up for trial, the respondent gave evidence and the matter was, thereafter, posted for the evidence of the appellant on 16.11.2012. On 16.11.2012, the appellant filed I.A.No.3425 of 2012, seeking an adjournment in the matter. The court below dismissed I.A.No.3425 of 2012, set the appellant ex parte in the proceedings, and later decreed the suit as prayed for, on 28.11.2012.

3. On the same day, the appellant filed I.A.No.3731/2012, invoking Order IX Rule 13 of the Code of Civil Procedure, seeking an order to set aside the ex parte decree. In support of the application, the brother of the managing partner of the appellant firm filed an affidavit stating that the managing partner of the appellant firm is working in Saudi Arabia as a driver; that he could not secure leave from his employer to come to India to attend the proceedings before the court below and that he could not be present in court on 16.11.2012 and on 28.11.2012 on account of that reason. It is also stated in the affidavit filed by the brother of the managing partner of the appellant firm that the managing partner has a power of attorney holder and even the power of attorney holder was out of India on those days.

4. I.A.No.3731/2012 was opposed by the respondent, contending mainly that the affidavit filed in support of the application was not sworn to by the managing partner of the appellant firm or his power of attorney holder, and as such, I.A.No.3731/2012 is not maintainable.

5. The court below, after noticing that the managing partner of the appellant has a power of attorney holder, dismissed I.A.No.3731/2012, holding that since the application is not supported by an affidavit of the managing partner of the appellant firm or his power of attorney holder, the same is not maintainable. According to the court below, a third party to the suit cannot file an affidavit in support of an interlocutory application.

6. We heard the learned counsel on either side.

7. Learned counsel for the appellant contended that it is not necessary that the party himself or his power of attorney holder should file affidavit in support of every interlocutory application filed in a pending proceeding. Per contra, the learned counsel for the respondent contended that even if it is conceded that a third party can file an affidavit in support of an interlocutory application, in the absence of any statement in the affidavit that the person who has sworn to the affidavit in support the application is authorised to file the affidavit, the application cannot be entertained.

8. Rule 42 of the Civil Rules of Practice, which is relevant in the context, reads thus:

“42. Evidence by affidavit : Any fact required to be proved in an interlocutory proceeding shall, unless otherwise provided by these rules, or ordered by the Court, be proved by affidavit; but the Judge may, in any case direct evidence to be given orally; and thereupon the evidence shall be recorded, and the exhibits marked in the same manner as in a suit and lists of the witnesses and the exhibits shall be prepared and annexed to the order.”

It is clear from Rule 42 that a fact required to be proved in an interlocutory proceeding, unless otherwise provided by the Civil Rules of Practice, or ordered by the court, can be proved by affidavit. The facts required to be proved in an interlocutory proceeding may consist of facts which could be seen, facts which could be heard, or facts which could be perceived by any other sense or in any other manner. Rule 3 of Order XIX of the Code of Civil Procedure, provides that affidavits filed to prove facts shall be confined to such facts