Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | ex parte decree Explanation r.2 Or.XVII |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Code of Civil Procedure, 1908 (5 of 1908) |
Case(s) Referred | Referred Case 0 |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Code of Civil Procedure, 1908 – Or.XVII, r.2, Explanation – Applicability of – In order to attract Explanation to Or.XVII, r.2, the party which has led evidence and has led substantial part of the evidence if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat “such party” as “present” on that day and is accordingly empowered to proceed in the suit – In the instant case, the defendants were proceeded ex parte – It was defendant who did not lead the evidence and therefore, Explanation to Or.XVII, r.2 would not apply – Therefore, since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Or.XVII, r.3 (b) r/w Or.XVII, r.2 for disposal of the suit by taking recourse to one of the modes directed in that behalf by Or.IX of the Code – Trial court (Single Judge) had proceeded to hear the suit ex parte by taking recourse to Or.IX, r.6 (a) in terms of Or.XVII, r.2 because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and, accordingly, trial court passed the preliminary decree – Such decree was an “ex parte decree” within the meaning of Or.IX, r.6 (a) r/w Or.IX, r.13 of the Code and, therefore, could only be set aside under Or.IX, r.13 on making out a sufficient ground by the defendants – Division Bench of High Court was justified in allowing the applications filed by defendant no.1 under Or.IX, r.13 and in consequence was justified in setting aside the preliminary decree treating the said decree as ‘ex parte decree’ – Interference with the said order is not called for – Trial court is directed to decide the suit on merits in accordance with law – Ex parte decree – Party, appearance of. |
Judge | Hon'ble Mr. Justice Abhay Manohar Sapre |
Neutral Citation | 2019 INSC 123 |
Petitioner | G. Ratna Raj (d) By Lrs. |
Respondent | Sri Muthukumarasamy Permanent Fund Ltd. & Anr. |
SCR | [2019] 1 S.C.R. 845 |
Judgement Date | 2019-02-01 |
Case Number | 2582 |
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