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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
P.N. Gopinathan - Appellant
Versus
O. Harendra Kumar Dave (Deceased) & Others - Respondent
A. Nos. 9558 & 9559 of 2019 in C.S. No. 413 of 2002
Decided On : 02-03-2021
Judges Summons - Setting Aside Ex Parte Decree - Original Side Rules, 1956 - Order XIV Rule 12, Order XIV Rule 8, Section 151 of CPC - C.S.No.413 of 2002 - Order VII Rule 1 of the OS Rules, Order XXXVII Rule 1 of the CPC - E.P.No.41 of 2017 - A.No.6810 of 2019 - A.No.9558 of 2019 - A.No.9559 of 2019
Fact of the Case:
The plaintiff filed a suit for recovery of a sum of Rs.17,04,053/- due under promissory notes. The defendants failed to defend the suit, and the suit was decreed. The defendants later sought to set aside the ex parte decree after a significant delay.
Finding of the Court:
The court found that the delay in seeking to set aside the ex parte decree was not justified, and the defendants had tacitly agreed to abide by the decree. The court held that the order of the learned Master allowing the application to set aside the decree was liable to be set aside.
Issues: Delay in seeking to set aside the ex parte decree, conduct of the defendants, and the legal representatives' right to challenge the decree.
Ratio Decidendi: The court emphasized that when delay is caused deliberately to scuttle a legal process, the court should come down heavily on such parties. It held that the legal representatives of the defendant, who had accepted the decree, could not seek to set it aside.
Final Decision: The court set aside the order of the learned Master in A.No.6810 of 2019 and allowed the application in A.No.9558 of 2019.
JUDGMENT :
Prayer in A.No.9558 of 2019: Judges summons filed under Order XIV Rule 12 of the Original Side Rules, 1956 to set aside the order passed by the learned master in A.No.6810 of 2019 in C.S.No.413 of 2002 dated 20.11.2019 on the grounds of appeal as stated in the affidavit and the appeal may be allowed.
A.No.9559 of 2019: Judges summons filed under Order XIV Rule 8 of the Original Side Rules, 1956 read with Section 151 of CPC to stay of all further proceedings arising out of the order and decreetal order passed in A.No.6810 of 2019 in C.S.No.413 of 2002 dated 20.11.2019 by the learned Master pending disposal of the appeal.
1. The legal representatives of the deceased 1st defendant had moved an application in A.No.6810 of 2019 to condone the delay of 4026 days in filing an application to set aside the ex parte decree dated 12.06.2008 in C.S.No.413 of 2002. The delay having been condoned by the learned Master the plaintiff is before this Court by filing A.No.9558 of 2019. The plaintiff has also filed A.No.9559 of 2019 seeking stay of all further proceedings pursuant to the order in A.No.6810 of 2019.
2. The facts which has to be traversed for appreciating the challenge to the order of the learned Master is herein below narrated.
(ii) The said suit had been filed as a summary suit under the provisions of Order VII Rule 1 of the OS Rules read with Order XXXVII Rule 1 of the CPC. The defendants on entering appearance have filed an application seeking leave to defend after serving the Applicant however they did not process the same. The Applicant thereafter took out an application in A.No.1468 of 2012 under the provisions of Order XIV Rule 10 of the OS Rules read with Order VII Rule 6 (3) (b) of the OS Rules seeking to pass a decree in terms of the suit. When this application came up for hearing, the defendants had sought time for filing counter. Since they had not obtained leave of the Court to defend the proceedings they were not granted time.
(iii) Thereafter, the application was argued and ultimately by a detailed order dated 12.06.2008 the application was allowed and consequently the suit C.S.No.413 of 2002 was decreed as prayed for.
(iv) Thereafter, the Applicant as decree holder had filed an execution proceedings in E.P.No.41 of 2017 to attach and bring to sale the immovable properties of the Judement Debtor. Though respondents 2 to 5 had received the notice on 17.04.2017 they had not chosen to appear before the Execution Court and consequently they were set ex parte on 06.12.2017. Thereafter, the Executing Court had ordered the sale of the schedule property and the sale was fixed on 02.04.2019. It is only after the sale date had been fixed the Applicant herein had filed an application to set aside the ex parte order of attachment in E.P.No.41 of 2017.
(v) Thereafter, the 2nd respondent and the 5th respondent alone had filed A.No.2337 of 2019 to condone the delay of 876 days in filing application to set ex parte order of attachment. By order dated 25.03.2019, the learned Master was pleased to pass a conditional directing the Applicants therein namely, respondents 2 and 5 herein to pay a sum of Rs.5,00,000/- by demand draft to the Applicant herein and to deposit a sum of Rs.3,00,000/- on or before 01.04.2019 to the credit of the execution proceedings. The said order has been complied with.
3. (i)Meanwhile, the legal representatives of the 1st defendant, namely, respondents 2 to 5 herein had filed A.No.6810 of 2019 to condone the delay of 4026 days in filing an application to set aside the ex parte decree. This petition has been allowed by order dated 20.11.2019 and aggrieved by
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