G.V. Narayanaswami Aiyar and Others vs Subramania Pillai

Cornish, J.—A few facts may be stated. The petitioners who were plaintiffs in the suit obtained an ex parte decree against defendant on 27th

July, 1933. This, as the lower Court has found, was after due service of summons upon the defendant. The defendant made application under

Order 9, Rule 13 of the CPC to set aside the decree on 15th June, 1934, that is to say, nearly one year afterwards. The application was therefore

clearly out of time unless the defendant was able to satisfy the Court that he had only come by knowledge of the decree within thirty days before

filing his application. But the lower Court has found that the defendant had knowledge of the decree on the date when it was passed, viz., 27th

July, 1933. The application was, therefore, hopelessly time barred and should have been dismissed. But the lower Court for the reason that

defendant said he had a good defence, set aside the decree on terms that defendant paid the taxed costs into Court by a specified date and also

paid the plaintiff Rs. 10 by the same date as his costs of the petition. lit is hardly necessary to say that this order was one which the lower Court

had no power to make. A Full Bench in Gadi Neelaveni Vs. Marappareddigari Narayana Reddi, has laid down that a Court has no power to set

aside an ex parte decree apart from O. 9, R. 13, and the reason given by the lower Court for setting aside the decree is certainly not to be found in

the rule in question. But apparently the defendant complied with the condition, paid the taxed costs into Court where they still remain, and paid Rs.

10 to the plaintiff''s vakil. From this circumstance it has been contended that the plaintiffs must be deemed to have adopted the order of the Court

and that they cannot now object to it.

Venkatarayudu v. Chinna Rama Krishnayya (1929) 58 M.L.J. 137 is relied upon. I doubt whether the circumstances in which this Rs. 10 was

received by the plaintiff''s vakil can be regarded as an adoption 0i the order. But, however that may be, I have no doubt that an adoption of an

order made without jurisdiction, cannot have the effect of making that order one which the Court was competent to pass. The application was time

barred; the Court was bound to take notice of that fact and to act upon it. And the only order which, the Court could have made upon it was to

dismiss the application. The Civil Revision Petition is accordingly allowed and the, order restoring the petitioners'' suit is set aside with costs

throughout, credit-being given for Rs. 10 already received by the petitioner.