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2010 Supreme(Mad) 382
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. PALANIVELU
Ravichandran
Versus
Rajeswari & Others
M.P. No.1 of 2009 in Appeal No.856 of 2006
Decided on: 29-01-2010
For the Petitioner:J. John Bosco, Advocate.
For the Respondents:R1, to R3, P. Rajendran, R4, P. Valliappan, Advocates.
Failure to challenge a decree and remaining ex parte before the Trial Court can result in the decree being binding, and notice may be presumed to be dispensed with in such circumstances.
Headnote:
Notice - Ex Parte Decree - Setting Aside Judgment
Fact of the Case:
The petitioner, as the forth defendant, was part of a Suit for Specific Performance of contract, which was decreed. The petitioner remained ex parte before the trial Court and did not take any steps to set aside the ex parte decree or prefer any Appeal before the Court.
Finding of the Court:
The Court found that since the petitioner remained ex parte before the Trial Court, notice was dispensed with and the judgment was passed. The petitioner's claim of not being served with any notice in the Appeal was dismissed, and the Court held that the ex parte decree against him was binding.
Issues: The issues revolved around the petitioner's failure to challenge the decree before the Court and the claim of not being served with notice in the Appeal.
Ratio Decidendi: The Court's decision was influenced by the petitioner's lack of action to challenge the decree and the presumption that notice was dispensed with due to the petitioner remaining ex parte before the Trial Court.
Final Decision: The Miscellaneous Petition to set aside the judgment was dismissed, and no costs were awarded.
1. The Petitioner is the forth defendant in O.S. No. 612 of 2004 on the file of the Additional District and Sessions Judge, Fast Track Court No.1. Coimbatore. It is a Suit for Specific Performance of contract filed by the first/respondent and the Suit was decreed. Upon that, defendants 1 to 3 preferred an Appeal before this Court in A.S. No. 856 of 2005 and notice was ordered to the parties. This petitioner remained ex parte before the trial Court. He had not taken any steps either to file an application to set aside the ex parte decree or to prefer any Appeal before this Court or had filed any written statement before this Court.
2. At the outset, the appellant took notice to all the defendants but second batta with Petition was due for him for this respondent, Further, it was not paid on the presumption that since he remained ex parte before the Trial Court no notice need to be taken. This Court on 23. 2007 took up the matter for hearing, heard the learned counsel for both sides and passed the judgment on merits.
3. Presently, the petitioner has come forward to set aside the above said judgment dated 23. 2007. In the affidavit, the has stated that he was not served with any notice in the Appeal and the appellant in the Appeal had wantonly not taken any steps to serve notice upon him. This petitioner is son of the first defendant and brother of other defendants. This Court proceeded on the premise that since this petitioner remained ex parte before the Trial Court, notice was dispensed with and passed the judgment. Even though no notice was serve upon this petitioner in the Appeal, it is to be presumed that notice was dispensed with.
4. As already stated, he has not challenged the decree before this Court, Hence, even though it is ex parte decree against him, it is binding on him. He is one among the respondents in the Appeal.
5. In view of the above said circumstances, the Petition has to be unsuited for the relief sought for. In the result, the Miscellaneous Petition is dismissed. No costs.
