Firm of R.B. Poddar (Boddar) and Co. vs D.D. Thathachariar and Others

Wallace, J.—There are two points which require elucidation before this civil revision petition can be settled;

Whether the application to set aside the decree is not out of time, having been presented more than 30 days from the date of the ex-parte

decree.

Whether the pleader who reported no instructions in the suit filed a fresh vakalat before he appeared to put in the application to set aside the ex-

parte decree.

The lower Court will submit findings on these points. Evidence may be taken on the first point, if parties desire, as the point seems to have been

overlooked until now. (The findings were accordingly submitted and then the following judgment was delivered.)

JUDGMENT

The findings are that the application to set aside the ex-parte decree was in time and that a fresh vakalat was put in with the application to set

aside the ex-parte decree. I accept them. The finding on the second point shows that the pleader did not continue to act on his original vakalat after

he reported no instructions in the suit. On the facts therefore, I must hold following the Full Bench cases in Pichamma v. Sreeramulu [1918] 41

Mad. 286 and Manickam Pillai v. Bathumma AIR 1925 Mad. 21, that the party was absent and, therefore, the decree, though on the merits was

nevertheless an ex-parte decree. A ruling of a single judge of this Court in Pahaniandi v. Naku AIR 1927 Mad. 109, subsequent to Manickam

Pillai v. Bathummal AIR 1925 Mad. 21, seems to me, if I may say so, with respect, contrary to the Full Bench rulings. There is, therefore, no error

of law in the proceedings of the lower Court and I dismiss the petition. Costs here to be costs in the cause.