In CIVIL APPEAL Nos.25822583 OF 2011, G. Ratna Raj vs Sri Muthukumarasamy Permanent Fund Ltd., the preliminary decree was passed in a suit for redemption of mortgage. Though the defendants had made appearance and filed written statement, they did not appear at the stage of evidence. So, the plaintiff’s evidence was recorded in the absence of defendant. The defendant’s evidence was closed on its non- appearance. Based on plaintiff’s evidence, the trial court passed a preliminary decree, upon which the defendant filed application under Order IX Rule 13 CPC. The application was rejected by the trial court holding that the decree was not passed ex-parte. This was challenged in the High Court, which reversed the trial court’s rejection and set-aside the decree.
On appeal, Supreme Court held that a decree passed after taking plaintiff’s evidence, without the appearance of defendant at the trial stage, is an ex-parte decree, which could be set aside under Order IX Rule 13 of the Code of Civil Procedure.
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