(Civil Miscellaneous Appeal against the fair and decreetal order dated 2.12.2004 made in I.A. No: 341 of 2003 in O.S. No: 44 of 2002 on the file of the Additional Sub Judge, Pondicherry.)

R. Balasubramanian, J.

This appeal was admitted on 24.6.2005. Having regard to the controversy involved in the appeal we wanted to find out from Mr. T.P.Manoharan, learned counsel, who had entered caveat for the respondent, as to whether we can dispose of the appeal itself on merits after calling for the records. Mr. T.P. Manoharan, learned counsel appearing for the respondent, readily agreed. Therefore, we directed the office to call for the records on 24.6.2005 itself when the appeal was admitted. Heard the learned counsel on either side.

2. The defendant in O.S.No.44 of 2002 on the file of Additional Sub Judge, Pondicherry is the appellant in this appeal. In that suit he filed I.A.No.341 of 2003 under Order IX Rule 13 to have the decree dated 13.10.2003, which according to him had been passed ex parte, set aside. The learned Trial Judge dismissed that application on the ground that as the suit stands disposed of on merits, the application under Order IX Rule 13 of the Code of Civil Pr