A person set ex parte cannot be treated as a party entitled to continue the proceedings without getting the ex parte order set aside.

1. This Civil Revision Petition is filed as against an order of dismissal dated 29.6.2009 passed in unnumbered E.A.S.R.No.13212 of 2008 filed by the petitioner under Section 47 read with Section 151 of the Code of Civil Procedure (for brevity, "the CPC") seeking for dismissal of the execution petition as not maintainable.

2. Heard Mr.G.Vijayakumar, learned counsel for the petitioner and Mr.B.Vijay, learned counsel for the respondent.

3.1. The petitioner herein is the judgment-debtor in a suit for compensation on the file of the Sub Court, Poonamallee in O.S.No.208 of 1998 filed by the respondent herein. The suit came to be decreed ex parte on 10.2.2000. Thereafter, the respondent herein filed E.P.No.40 of 2004 before the District Munsif Court, Alandur seeking for execution of the decree passed in O.S.No.208 of 1998. In the said execution petition, notice was ordered to the petitioner. He has also entered appearance by filing vakalat through his counsel. The said execution petition was filed on 9.7.2004 and the petitioner entered appearance through his counsel on 28.9.2004. When the matter was called on 12.12.2005, the petitioner did not appear and consequently, he was set ex parte on the said day for non filing of counter. On the same day, an order of attachment was also passed.

3.2. Thereafter, the petitioner filed E.A.No.5 of 2006 to raise the attachment, in which a conditional order was passed on 16.3.2006, However, the said E.A.No.5 of 2006 itself came to be dismissed for non payment of cost on 3.4.2006. The petitioner filed E.A.No.53 of 2006 to restore E.A.No.5 of 2006 and consequently, by an order dated 5.6.2006, E.A.No.5 of 2006 came to be restored and the said application was also allowed by raising the attachment.

3.3. It is seen that the petitioner has not filed any counter in the Execution Petition and, therefore, the matter was posted for filing counter. In the meantime, the petitioner filed E.A.No.84 of 2006 to stay further proceedings of the execution on the ground that an application under Section 5 of the Limitation Act to set aside the ex parte decree passed in O.S.No.208 of 1998 is pending on the Original Side. The said E.A.No.84 of 2006 also came to be dismissed for default on 9.1.2008 and the main Execution Petition was posted for filing counter on 25.1.2008.

3.4. Thereafter, when the matter was taken up on 14.2.2008 for hearing, the petitioner did not appear and he has also not filed counter. Consequently, he was set ex parte on 14.2.2008 and an order of attachment was also ordered on the same day. Thereafter, the petitioner filed the present unnumbered application before the Executing Court under Section 47 read with Section 151 of the CPC for the relief as stated supra. The Court below rejected the said application by observing that the same is not maintainable in view of the fact that the petitioner has not taken any steps to set aside the order made on 14.2.2008, wherein and whereby he was set ex parte in the execution proceedings. Aggrieved against the said order passed by the Court below, the present revision is filed.

4. The learned counsel for the petitioner submitted that the petitioner is entitled to maintain an application under Section 47 of the CPC before the Executing Court and, therefore, the order of the Court below in rejecting the said application is not correct.

5. Certainly there is no doubt about the position that the party to the proceedings can maintain an application under Section 47 of the CPC. But in this case, the facts and circumstances, as referred to above, would disclose that on 14.2.2008 itself the Court below passed an order setting the petitioner ex parte and also made an order of attachment on the very same day. Admittedly, the petitioner has not taken any steps so far to set aside the said order dated 14.2.2008. Thus, the petitioner having been set ex parte on 14.2.2008 and in the absence of any application filed by him seeking to set aside the said ex par