Baywood represented by Shobana Nair vs Tamil Nadu Housing Board

Abdul Hadi, J.—The defendant has preferred the C.R.P. against the order dated 22.4.1994 passed in I.A. No. 3783 of 1994(in O.S. No.

3683 of 1985) which was filed by it, for setting aside the ex parte decree dated 31.3.1986 against it in the said O.S. No. 3683 of 1985 on the file

of VII Judge, City Civil Court, Madras.

The impugned order simply runs as follows:

The impugned petition will be allowed on deposit of Rs. 81,058.73 in court on or before 14.6.1994 failing which this petition shall stand dismissed.

So, it is clear that without any discussion the impugned order has been passed stating that the I.A. will be allowed on the petitioner depositing the

above said sum, which is prayed for in the suit. Learned counsel for the petitioner submits that there was not even a counter-affidavit to the said

LA. Learned counsel for the respondent could not repudiate this contention. While so, it is submitted that the impugned order has been passed in

the above fashion without adverting to any of the allegations in the affidavit filed in support of the I.A. The relevant allegations therein are, inter alia

as follows:

I state that the respondent herein filed the above suit for recovery of arrears for the sum of Rs. 87,138.73 against me and an ex parte decree was

passed by this Hon''ble Court in 31.3.1986.1 state that I have not received any summons from this Hon''ble Court with regard to the above suit.

(Para 2)

I state that the respondent herein filed the E.P. No. 3397 of 1992 before the learned 9th Assistant Judge and obtained the order of attachment

against me. I state that I have not received even the E.P. notices from the learned 9th Assistant Judge, I submit that the respondent herein obtained

the ex parte order of attachment on 3.2.1994 from the learned 9th Assistant Judge. I further state that I am residing in the above address for the

past so many years and therefore the court summons and notice have been served on me. I state that the respondent came to our office on

3.3.1994 with the court bailiff regarding the E.P. No. 3397 of 1992. Only after seeing the bailiff it was brought to my knowledge that there was an

ex parte decree in O.S. No. 3683 of 1985 against me and the order of attachment was also passed by the learned 9th Assistant Judge, in E.P.

No. 3397 of 1992.

So, the petitioner had the knowledge of the ex parte decree only on 3.3.1994, as per the above said allegation in the supporting affidavit to which

there is no counter. The court below has not at all adverted to this material fact.

According to the petitioner''s counsel the summons was served only by substituted service. Article 123 of the Limitation Act, which provides

that for an application to set aside the decree passed exparte, the period of limitation is 3 0 days from the date of the decree, has an explanation

which says that for the purpose of the said article, substituted service under R.20 of 0.5 of C.P.C. 1908 shall not be deemed to be service. So,

according to the said counsel in the present case, the limitation will begin to run only from 3.3.1994, and the above said LA. has been presented on

9.3.1994 itself. I agree that the limitation question will therefore not arise at all. When such is the situation, the way in which the impugned order

has been passed, without any application of mind and without giving any reason, is to be very much deplored.

Learned counsel for the respondent also did not argue anything contra. For all these above said reasons the impugned order is set aside and the

C.R.P. is allowed.

Further, it is submitted that the suit is of the year 1985 and that hence, it is better the suit is tried afresh and decided at an early date. Learned

counsel for the petitioner submits that he would file written statement within a short time. In the above circumstances, the Court below is directed

to dispose of the trial of the suit as early as possible preferably within four months from the date of receipt of this order.