Admissibility of petition for setting aside ex-parte decree.

1. The petitioner is the plaintiff, aggrieved by the order setting aside the ex parte decree. The petitioner filed O.S.No.2827 of 1982 for partition of half share in the suit property. The respondent is the second defendant. The first defendant, who is not a party to the civil revision petition, is the brother of the petitioner. Both the respondent and the other defendant were originally represented by the same counsel. But they filed separate written statements. The case was taken up for trial and issues were framed. On 22.2.1990, the evidence of P.W.1 was recorded. The matter was posted on 27.2.1990, on which date the Advocate for the respondent herein reported instructions". The respondent was set ex parte and preliminary decree was passed on 7.3.1990. The respondent filed I. A. No. 707 of 1994 for setting aside the ex parte decree. According to him, on 27.2.1990 he was not present in Court and the Advocate had reported 'no instructions' , but he could not appear in Court because of acute dysentery for which he took native treatment and he was prevented by "sufficient cause". Since he has substantial defence in the suit, it was necessary to set aside the ex parte decree. The District Munsif, Tiruchy dismissed the interlocutory application on the ground that sufficient cause had not been made out. Aggrieved thereby the respondent filed C.M.A.No.27 of 1996. The learned Subordinate Judge allowed the appeal. Against that, the present civil revision petition has been filed.

2. Mr. Rajendran, learned counsel for the petitioner submitted that the conduct of the respondent was not at all bona fide. The suit was decreed on merits and therefore, an application under Order 9, Rule 13, CPC is not maintainable. He relied on the decision reported in K.R. Chinnathambi Gounder v. Bhanumathy, 1998 (2) LW 271 in which this Court dismissed the application under Order 9, Rule 13, CPC, because there was no bona fide on the part of the petitioner and his only intention was to drag on the matter.

3. Mr. V. Lakshmi Narayanan, learned counsel for the respondent on the other hand submitted that if the exparte decree is not set aside it would cause irreparable injury. According to him, he had purchased the suit property, which was subject of the partition suit, from the brother of the petitioner and therefore, the ex parte decree if allowed to stand would grievously prejudice his rights. The learned counsel would submit that, in any event, Order 9, Rule 13, CPC provides that the Court shall make an order setting aside the ex parte decree and therefore, the learned Subordinate Judge had rightly allowed his appeal. He also submitted that assuming without admitting that the decree had been passed by the learned Judge on merits the proviso to Order 9, Rule 13, CPC would show that when the decree is set aside against the defendant who applies under the said rule and the decree is of such a nature that it cannot set aside against one defendant alone, it may be set aside as against all or any of the other defendants. The learned counsel also brought to the notice of the Court that after the appeal was allowed, the Trial Court had taken up the suit for hearing and the petitioner was also examined as P.W.1. Further the petitioner had also filed a memo to bring on record the legal representatives of his brother. Therefore, having participated in the proceedings before the Lower Court in compliance with the order passed by the learned Subordinate Judge it is now not open to the petitioner to attack it. The learned counsel relied on, (1) Adivi Suryaprakasa Rao v. (Timmalapalli) Sreeramulu, AIR 1931 Mad. 6; (2) S. Venkatrama Aiyar v. Unnamalai Ammal, 1948 (2) MLJ 404; (3) G.P. Srivastava v. R.K. Raizada, 2000 (2) CTC 27 : 2000 (3) SCC 54; (4) Kunchan Achari Padmanabhan Achari v. Yohannan Thomas, AIR 1957 Ker. 37 and (5) Smt: Benibai v. Smt. Champabai, AIR 1996 MP 243. According to him, the exparte decree must be set aside.

4. The present case is not o