AI Structured Summary
Not yet generated for this judgment
Judgment
D. Appa Rao, J.—This is a revision preferred by 2nd defendant against the order, dated 28-10-2004, in I.A.S.R. No. 9198 of 2004 in O.S. No. 1577 of 2000 on the file of the I Additional Junior Civil Judge, Kakinada, in rejecting an application filed to set aside an exparte decree.
The 1st respondent herein is the plaintiff. It has filed a suit for recovery of amounts due under a chit fund impleading the present revision-petitioner as 2nd defendant along with three more defendants. While the revision-petitioner did not choose to contest, the defendants 1, 3 and 4 contested the matter, filed written statement, let in evidence both oral as well as documentary.
The learned Junior Civil Judge, after considering the evidence placed on record, passed a decree and judgment, dated 24-8-2004, against all the defendants.
In the month of September, 2004 the revision-petitioner has come up with an application under Order 9, Rule 13 of C.P.C. to set aside the decree on the ground that it was an exparte decree. The learned Junior Civil Judge, after considering the fact that the judgment was passed on merits, rejected the application.
Aggrieved by the said decision, the revision-petitioner has come up with this revision contending that, without considering the relevant facts, the trial Court has erroneously rejected the application.
Evidently, the revision-petitioner did not dispute as to the receipt of summons in the suit. At no time, he filed an application to set aside the exparte decree passed against him. Even a perusal of the decree and judgment shows that the decree was passed on merits.
Assuming that it was exparte decree as far as the revision petitioner is concerned, he could have filed an appeal as provided under Order 43(1)(d) of C.P.C. which reads as follows:
(1) Appeal from orders: An appeal shall lie from the following orders under the provisions of Section 104, namely...
(d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed exparte.
From a perusal of the said provision, it is clear that an appeal would lie from such an order. The revision is misconceived. It is not known as to how this revision was filed, when a provision of appeal is available. In view of the non-maintainability of the revision, it is liable to be dismissed.
In the result, the revision petition is dismissed. However no costs.