Supreme Court of India
G. Ratna Raj (d) by Lrs. v. Sri Muthukumarasamy Permanent Fund Ltd. & Anr.
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What the Court ordered
In view of the foregoing discussion, we are of the view that the Division Bench was justified in allowing the applications filed by defendant No.1 under Order 9 Rule 13 of the Code and, in consequence, was justified in setting aside the preliminary decree dated 25.02.2003 passed in O.S. No.131/1999 treating the said decree as “ ex parte decree.
Judgment, page 10
From the headnote
Code of Civil Procedure, 1908 – Or.XVII, r.2, Explanatio n – Applicability of – In order to attract Explanation to Or.XVI I, r.2, the party which has led evidence and has led substantial part of the evidence if fails to appear on any day to which the hear ing of the case is adjourned, the Court may treat “such party” as “ present” on that day and is accordingly empowered to proceed in the su it – In the instant case, the defendants were proceeded ex parte – It was defendant who did not lead the evidence and therefore, Explanation to Or.XVII, r.2 would not apply – Therefore, since the
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