Case Note & Summary
The case arises from a civil suit (Regular Civil Suit No.47 of 2001) filed by the respondent (original plaintiff) against the appellants (original defendants). The suit was dismissed by the trial court. The plaintiff appealed (Regular Civil Appeal No.180 of 2003), and the appellate court allowed the appeal ex parte on 17-10-2005, declaring two sale deeds null and void and directing possession to be handed over to the plaintiff, with an inquiry into mesne profits. The appellants (defendants) were absent during the appeal hearing. Subsequently, the appellants filed M.J.C. No.16 of 2010 under Order XLI Rule 21 of the Code of Civil Procedure, 1908, seeking to set aside the ex parte decree. The application was rejected by the learned Adhoc District Judge-1, Buldhana on 31-7-2012. Hence, the present appeal against that order. The appellants argued that appellant No.1 was the caretaker and that notice was served on his son, not on him personally. The court examined the bailiff report and found that the notice was served on the son of appellant No.1, who was an adult member of the family. The court held that the appellants failed to show sufficient cause for non-appearance. The court also noted that appellant No.3, who was served, did not appear, and her claim of no interest was false as she had filed the application. The court dismissed the appeal, upholding the rejection of the application.
Headnote
A) Civil Procedure - Ex Parte Decree - Setting Aside - Order XLI Rule 21 CPC - Sufficient Cause - The appellants sought to set aside an ex parte decree passed in appeal, claiming that appellant No.1 was the caretaker and that notice was served on his son. The court held that the appellants failed to prove sufficient cause for non-appearance, as the explanation was vague and the bailiff report indicated proper service. The application was rightly rejected. (Paras 6-8) B) Civil Procedure - Ex Parte Decree - Setting Aside - Order XLI Rule 21 CPC - Burden of Proof - The burden lies on the applicant to show that there was sufficient cause for non-appearance. The court found that the appellants did not discharge this burden, as the evidence was insufficient to establish that the notice was not duly served or that the appellants were prevented from appearing. (Paras 6-8)
Issue of Consideration
Whether the appellants made out a sufficient cause for their non-appearance in the appeal to warrant setting aside the ex parte decree under Order XLI Rule 21 of the Code of Civil Procedure, 1908.
Final Decision
The appeal is dismissed. The order of the learned Adhoc District Judge-1, Buldhana dated 31-7-2012 rejecting M.J.C. No.16 of 2010 is confirmed. No order as to costs.
Law Points
- Order XLI Rule 21 CPC
- Ex parte decree
- Sufficient cause
- Setting aside ex parte decree
- Burden of proof
