This Civil Revision Petition is directed against the order dated 8. 2007 made in I.A.No.1561 of 2005 in O.S.No.647 of 1995 on the file of the learned District Munsif, Perambalur.

2. The petitioner is the defendant in O.S.No.647 of 1995. The respondent is the plaintiff on the file of the learned District Munsif, Perambalur. The case was posted on 110. 1995 for filing written statement. Since the written statement was not filed on the said date, he was called and an ex parte order was passed. The case was posted for the appearance of the plaintiff and for recording his ex parte evidence on 111. 1995, 20.11.1995 and 112. 1995, however he did not make his presence before the Court. Finally on 212. 1995, when the case was posted for his appearance, he did not appear before the Court, resulting in the dismissal of the suit for non-prosecution.

3. Thereafter, he filed an application in I.A.No.21 of 1996 under Order 9 Rule 9 of CPC to restore the case to file. The lower Court allowed the application without issuing notice to the defendant/the petitioner herein and thereafter on 2. 1996, he was examined by the Court and ex parte deceree was passed against the petitioner. The respondent levied the Execution Proceedings in E.P.No.38 of 2005 on the file of the above said Court for attachment and sale of the properties belonging to the petitioner.

4. The petitioner had no knowledge about the above said dismissal of the suit. Only after receipt of the summons in the Execution Proceedings, he filed an application to set aside the ex parte decree passed against him along with the application to condone the delay of 3177 days in filing the said application.

5. Heard Mr. P. Valliappaan, the learned counsel for the petitioner.

6. The quintessence of the contention of the learned counsel for the petitioner is that even though the petition was filed for condoning the delay of 3177 days, it has been filed only with abundant caution and in fact there was no such delay at all. He explained the delay by stating that the failure on the part of the Court to issue notice to the petitioner is very much prejudicial to his right and he had knowledge only after receiving the notice in the Execution proceedings. Under Order 9 Rule 9 of CPC, unless notice of the application has to be served on the opposite party, no order could be passed. But ignoring the said provision, the lower Court has passed the order against the petitioner, which is unsustainable as per his contention.

7. He garners support from an earlier decision of this Court in the Manager, Personal Banking Division State Bank of India, Madras Main Branch, Madras 600 001 and two others vs. P.S. Maragatham, reported in (2002 (2) CTC 424), wherein this Court, while discussing about Order 9 Rule 9 of CPC has observed that it is incumbent upon the Court to issue a notice, when the application for restoration of Suit under Order 9 Rule 9 of CPC is filed. It is also observed that notice to the respondent in the said application is mandatory.

8. In another ruling of this court in M/s. Hindustan Petroleum Corporation Limited vs. M/s. Karthikeyan Agencies rep. by its Partners, reported in (1993 (1) MLJ 150), this court held that apart from Rule 32 of the Civil Rules of Practice even under Order 9 rule 9(2) of C.P.C, notice of the application should be served on the opposite party.

9. The lower Court while justifying the non-issuance of notice to the respondent, appears to have treated the application filed by the respondent as one under Order 9 Rule 4 of C.P.C and observed that even though there was no notice in the petition filed under order 9 Rule 9 to the respondent, it was not wrong or illegal in allowing the application. In the view of this Court, the above said observation is not correct. The order 9 Rule 4 of C.P.C reads as follows:

"Plaintiff may bring fresh suit or court may restore Suit to file:

where a suit is dismissed under Rule 2 or rule 3, the plaintiff may (subject to the l