Ex-Parte Orders Passed Without Issuance Of Notice Cannot Be Brought Within Purview Of S.36 CPC For Execution: Kerala High Court
The Kerala High Court recently observed that an order passed without issuing notice to the opposite party cannot be brought under the purview of Section 36 CPC and it cannot be executed through court until the same is merged in a subsequent order after notice to the opposite party.Justice P. Somarajan observed that in cases where the ex parte order has been passed without issuing notice to. The Kerala High Court recently observed that an order passed without issuing notice to the opposite party cannot be brought under the purview of Section 36 CPC and it cannot be executed through court until the same is merged in a subsequent order after notice to the opposite party. Justice P. Somarajan observed that in cases where the ex parte order has been passed without issuing notice to the opposite party, including an order passed under the proviso attached to Rule 3 of Order XXXIX CPC, will not have any binding force on the opposite party, since it is deprived of "audio alteram partem" which is a fundamental requirement for making the order binding on the parties. The Court observed that when there is the default on the part of the opposite party to appear and answer, the consequent order passed ex parte would stand binding upon him, but when no notice was issued, and no opportunity of hearing was given, the ex parte orders passed either by way of ad interim injunction or otherwise would fall under the ambit of Order XXXIX Rule 3 A CPC.
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