Issue of ex-parte decree while crp is pending
Balaji Bakthavathsal
(Querist) 12 October 2015
This query is : Resolved
Dear Learned Lawyers,
In a civil suit filed in the lower court, the respondents were declared ex-parte and when the court was about to give the ex-pate decree, one of the respondent appeared and moved an IA petition seeking to set aside the ex-parte order. The court dismissed the petition as it was submitted after a period of three years without any justification. After that the respondent filed a CRP in the High Court which is pending. Now, the proceedings which are continuing in the lower court, is about to give the ex-parte decree but the judge is hesitating to issue the ex-parte decree as the CRP requesting revision is pending in the High Court. Can you please elucidate the exact rule position quoting reference cases please ?
Anirudh
(Expert) 14 October 2015
The lower court Judge is sensible in awaiting the outcome of the HC decision.
Balaji Bakthavathsal
(Querist) 14 October 2015
Dear Mr. Anirudh,
When a person raises a query, please try to understand the need/purpose and urgency. I did not ask whether the judge is sensible or insensible. All that I wanted to know is whether the Rule permits passing ex-parte decree while the CRP is pending. Thats all. I am sorry if I have hurt you.
Thanks & Regards
Balaji
Anirudh
(Expert) 14 October 2015
Dear Mr. Balaji,
Whether you asked or not, that is my view. You cannot stop me from expressing my view on the post. I am not supposed to answer depending upon the urgency / need etc. I answer the query, as I see it.
Having said that, there is no rule which compels a judge to pass or not to pass an ex-parte decree.
No. You have not at all hurt me. For that matter, I do not mind such things. As this is a public forum and anybody comes to this public forum must face those things in a professional fashion, which I always do, unless it is a blatant abuse by somebody in which case, I take head on.
T. Kalaiselvan, Advocate
(Expert) 19 October 2015
In the normal circumstances the court ought to pass the exparte decree on the basis of evidence deposed by the plaintiff. In this case as observed by expert Mr. Anirudh, the judge seems to hesitate passing an order maybe to avoid multiplicity of proceedings in the event the high court allows the revision filed y the respondent against the dismissal of the IA by lower court.
You may ask your advocate to put pressure on the court to dispose the case soon.
V R SHROFF
(Expert) 19 October 2015
APPLY TO EXPEDITE THE MATTER, POINTING OUT THE CONTINUOUS ABSENCE OF RESPONDENTS; EXCEPT ONE WHO APPEARED AFTER 3 YEARS.
LET JUDGE TAKE HIS OWN TIME TO DECIDE.
JUDGES TOO: HAVE TO SAVE THEIR SKIN..
JUDGE KNOWS , THE ORDER WILL BE APPEALED IN HIGH COURT, AND HE HAVE TO TAKE DUE CARE..
ONCE Respondent APPEARED, IT IS NO MORE EX- PARTE..
Balaji Bakthavathsal
(Querist) 22 October 2015
Dear Learned Lawyers,
I have found out the answer to my query with the help of google search. I have given below my findings. Please correct me if I am wrong.
Order 41 Rule 5 C. P. C says that the filing of an appeal does not automatically operate as a stay of execution proceedings of the decree appealed from and it is not until the appellate Court orders a stay of execution of that decree that execution can be stayed.
Thanks & Regards
Balaji
