The main legal point established in the judgment is that when substantial evidence is available on record, and the Court exercises its powers under Order 17 Rule 2 and Order 17 Rule 3 of CPC, the remedy available to the petitioner is only by way of an appeal under Section 96 of CPC.

JUDGMENT

(Prayer: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, to set aside the fair and decretal order dated 13.08.2021 made in I.A.No.136 of 2021 in O.s.No.56 of 2017 on the file of the Principal District Judge, Dindigul.)

1. The above civil revision petition is preferred against the order dated 13.08.2021 made in I.A.No.136 of 2021 in O.S.No.56 of 2017 on the file of the learned Principal District Judge, Dindigul.

2. The suit in O.S.No.56 of 2017 is filed by the respondents/plaintiffs for the relief of partition and for permanent injunction, in which, an ex parte decree was passed on 18.08.2020. Thereafter, the petitioner/9th defendant filed an application in I.A.No.136 of 2021 under Section 5 of Limitation Act to condone the delay of 184 days in filing the petition for setting aside the ex parte decree passed on 18.08.2020. In the said petition, the petitioner/ 9th defendant has stated that the 9th defendant was set ex parte for non-filing of the written statement and an ex parte order was passed against him and thereafter, the petitioner/9th defendant filed an application under Order 9 Rule 7 of CPC in I.A.No.321 of 2019 to set aside the ex parte order along with the written statement. The said application was posted on 29.11.2019 for service of notice to the respondents/plaintiffs. Due to COVID-19 pandemic situation, the petitioner was unable to meet his counsel and give instructions. Hence, the said application was dismissed for default on 29.11.2019 as notice was not served on the respondents/plaintiffs. On 18.08.2020, ex parte decree was passed against the petitioner. The petitioner has further stated in the petition that he has good case on merits and fair chances of success and therefore, sufficient opportunity to be given to him to put forth his case. However, the trial Court dismissed the above application. Aggrieved by this, the present revision is preferred.

3. The learned counsel appearing for the revision petitioner would submit that the decree passed against the petitioner /9th defendant is only an ex parte decree and the decree in the instant suit is indivisible. When the petitioner has made out a case for setting aside the ex parte decree, the entire decree as against the other defendants would also have to be set aside notwithstanding the judgment and decree passed against the other defendants. The trial Court erred in holding that the petitioner/9th defendant is only a purchaser of the second item of the property from the fourth and fifth defendants. Hence, the 9th defendant steps into the shoes of fourth and fifth defendants and since the fourth defendant submits to decree and the right of the fifth defendant is determined by the Court, the petitioner has no leg to stand before the trial Court. He would further submit that the plaintiffs themselves have chosen to array the petitioner herein as 9th defendant in the suit. It is not open to the trial Court to render a finding that the petitioner do not have an independent stand distinct from the vendor. He would further submit that the ex parte decree is indivisible and therefore, depending upon the nature of the ex parte decree passed against all defendants can be set aside. To support his contention, he has relied upon the judgment reported in (2008) 13 SCC 466.

4. Per contra, the learned counsel for the respondents would submit that a reading of explanation to Order 17 Rule 2 r/w order 17 rule 3 of CPC would show that where substantial evidence has been recorded and the Court feels that such evidence is sufficient to decide upon the case, then in that case the Court may exercise its discretion to proceed with the case as if the parties were present. In the instant case, the fifth defendant appeared and contested the suit and the trial Court adopting the procedure under Order 17 Rule 2, its explanation and under Order 17 Rule 3, had proceeded to pass judgment on merits. The learned trial Judge has dealt with each issue and re