IMPORTANT POINT
The preliminary decree passed when plaintiff was present but defendant was not present despite service of summons, such decree is an ex parte decree.

JUDGMENT :

Abhay Manohar Sapre, J.

1. Application for substitution is allowed.

2. These appeals are directed against the final judgment and order dated 11.01.2008 passed by the High Court of Judicature at Madras in O.S.A. Nos.299 & 300 of 2006 whereby the Division Bench of the High Court allowed the appeals filed by respondent No.1 herein.

3. The controversy involved in these appeals lies in a narrow compass. However, in order to appreciate the same, few relevant facts need mention hereinbelow.

4. The original appellant-G.Ratna Raj (since dead and now represented by his legal representatives) was the plaintiff whereas respondent No.1 was defendant No.1 in the civil suit out of which these appeals arise. Respondent No.2 is impleaded as party respondent in this Court by order dated 06.02.2014.

5. The original plaintiff (appellant herein) G Ratna Raj filed a Civil Suit No.131/1999 against the defendants (Sri Muthukumaraswamy Fund Ltd. - Respondent No.1 herein and Balajee & Ors.) in the High Court of Madras on its original side jurisdiction for redemption of mortgage and for permanent injunction in relation to the mortgaged property.

6. The defendants on being served entered their appearance and filed their written statement. The Trial Court, on the basis of pleadings, framed the issues. The plaintiff examined himself as PW-1. The defendants cross-examined the plaintiff. Thereafter, the plaintiff closed his case. The case was accordingly posted for recording defendants’ evidence.

7. At that stage of the proceedings, the defendants did not appear in the suit and, therefore, the Court proceeded ex parte against them. The proceedings in the suit then continued as ex parte against the defendants. The plaintiff then got himself reexamined in the proceedings. He, however, could not be recrossexamined by the defendants because they were already proceeded ex parte in the proceedings.

8. The Trial Court (Single Judge) by judgment/decree dated 25.02.2003 passed a preliminary decree against the defendants in relation to the suit property. This led to filing of the two applications (IA No.340/2006 and IA No. 341/2006) by defendant No.1 before the Trial Court.

9. So far as IA No. 341/2006 is concerned, it was filed under Order 9 Rule 13 of Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) for setting aside of the preliminary decree dated 25.02.2003 and so far as IA No.340/2006 is concerned, it was filed for condonation of delay in filing the application under Order 9 Rule 13 of the Code.

10. By order dated 14.03.2006, the Single Judge dismissed both the applications and held that the application filed by defendant No.1 under Order 9 Rule 13 of the Code was not maintainable because the preliminary decree dated 25.02.2003 was not an “ex parte decree”. In other words, he was of the view that since the preliminary decree dated 25.02.2003 was not an ex parte decree, an application under Order 9 Rule 13 of the Code could not be filed for its setting aside.

11. Defendant No.1 felt aggrieved and filed appeals before the Division Bench of the High Court. By impugned order, the Division Bench allowed the appeals and set aside the order of the Single Judge. The Division Bench held that the preliminary decree dated 25.02.2003 was an ex parte decree passed in the civil suit by the Trial Court (Single Judge) and, therefore, the application filed by defendant No.1 under Order 9 Rule 13 of the Code was maintainable with a view to find out as to whether such decree could be set aside under Order 9 Rule 13 of the Code or not.

12. The Division Bench, therefore, allowed the application filed by defendant No.1 under Order 9 Rule 13 of the Code subject to their paying a cost of Rs.10,000/to the plaintiff. The civil suit was accordingly restored to its original file for its disposal on merits in accordance with law. It is against this order, the plaintiff has felt aggrieved and filed the present appeals by way of special leave in this Court.

13. The short ques