S.R.M.S. Chokkalingam Chetty vs N.L.N. Lakshumanan Chetty

The first point taken is that no review can be granted on grounds falling within Order IX Rule 13 of the CPC and a party''s remedy in such a

case is confined to that rule, and as time had admittedly expired in the present case for an application to set aside the ex parte decree under that

rule when the review application was filed, it should have been dismissed. We are unable to uphold this contention. If a party can bring his

application within the provisions of Order 47 Rule 1 of the Code of Civil Procedure, the fact that he could also have applied under Order IX Rule

13 cannot be treated as a bar to it. See Lal Chet Narain Sahi v. Rampal Manjhi (1911) 16 C.W.N. 643 following Raj Narain Purkait v. Ananga

Mohan Bhandari ILR (1899) Cal. 598. We follow these rulings in spite of the dissent of Mr. Justice Roe in Deodip Singh v. Gopal Singh (1916) 1

P.L.J. 547 In Virupakshi Gowd Vs. Bandappa, the view of that learned Judge was not accepted by this Court. It has been ruled by this Court in

Full Bench in Krishna Aiyar v. Kuppan Ayyangar ILR (1906) Mad. 54 that a party''s right of appeal is not affected by the fact that he had a right

under Order IX Rule 13 also which he did not take advantage of and that it is open to the appellate court to set aside the ex parte decree and

direct a new trial on grounds falling within Order 9 Rule 13 of the Code of Civil Procedure. If an appeal can be allowed in that manner we see no

reason to suppose that a review cannot be allowed on similar grounds.

The next point taken is as to limitation. The review was no doubt filed after the expiry of 90 days from the date of the decree but it is clear from

the express language of Section 12(2) of the Limitation Act that the petitioner was entitled to have deducted in his favour, the time taken for

obtaining the copy of the judgment on which this review was founded. It was admitted in the lower court that on making this deduction the

application was in time. We must therefore overrule this objection.

It was finally argued that on the merits there was no ground for setting aside the ex parte decree as petitioner was served in person and could

have appeared at the hearing with some diligence. He was living in Ipoh in Federated Malay States when he was served and the lower court has

found that he had sufficient reason for his failure to appear. We agree with that finding. We also observe that it is not one of the grounds which can

be urged under Order 47 Rule 7 in an appeal from an order granting a review. See Tholan v. Kunhikutty (1912) 24. M.L.J. 93 Maduru

Brahmayya Vs. Vedula Vellamma (died) and Others, and Sreenivasa Aiyar v. Nataraja Aiyar (1915) 2. L.W. 366.

The appeal fails and is dismissed with costs.