Thavasikannu Thevar and Others vs S. Sankaralingam Pillai

Madhavan Nair, J.—This is a civil revision petition u/s 115, Civil P.C. and I am asked to set aside the order of the learned Subordinate

Judge declaring the petitioners'' ex parte. The learned Judge has given reasons for not acceding to the request of the petitioners to restore the case.

On two previous occasions, the suit was adjourned for their convenience and they did not appear. The present is the third occasion. The learned

Judge apparently thought that there was no justification for giving them another indulgence. The affidavit filed in support of their application shows

that they could have been more diligent in the step they took to be present in Court at the proper time. If they missed the train as they say they did,

they could have sent a telegram from the place apprising the Court of their inability to be present and might have followed in a car. They say that

they did follow in a car and that they reached the place at a later hour. If they had sent a telegram that would have been better evidence in support

of their bona fides. I cannot say that the learned Judge was wrong on the merits in refusing to set aside the order declaring the petitioners ex parte.

Even if the learned Judge was wrong on the merits, I am not satisfied that I have jurisdiction u/s 115, Civil P.C. to interfere with the lower Court''s

order.

Apart from these considerations, there is another factor of importance which has also a bearing on the present question. It appears that a decree

has been passed in the suit and as it has not been appealed against within the period allowed by law that decree has now become final. The present

position is this: if this petition is allowed, what will be the effect of it on the decree that has been passed already? It appears to me that unless that

decree is set aside, the lower Court will not be in a position to deal with this application and set, aside the ex parte decree. It is said that the very

fact of sending back this application for consideration, by the lower Court amounts to setting aside the decree and that decree cannot stand in the

way of the disposal of this application. The authorities that have been cited before me do not satisfy that this is the correct legal position. If the

decree that has been passed by the Court depended for its validity upon the order which is now challenged before me, then it may be said that the

very fact of remanding the application would result in super session of the decree, but this is not a case of that kind. The decisions brought to my

notice, namely Lakshmi v. Marudevi (1915) 2 AIR Mad 197 and Sundaram Chettiar v. Valli Ammal (1935) 22 AIR Mad 43 do not therefore

help the petitioners. In these circumstances, I cannot see my way to set aside the order of the learned Judge. The proper procedure for the

petitioners was to have preferred an appeal against the decree and got their remedy by urging the present grounds. As it is, I do not think I have

even jurisdiction to deal with this matter u/s 115, Civil P.C. The civil revision petition is accordingly dismissed with costs.