Amberson Marten, Kt., C.J.
1. In our judgment the question submitted to this Full Bench ought to be answered in the affirmative.
2. The final result of the applicants' application to have the ex parte decree set aside was that it was rejected. Whether one arrives at that result by reading into the order of May 30, 1925, an implication that, if the conditions therein mentioned were not satisfied, the application would be rejected ; or, whether we take the later order of July 18, 1925, which specifically stated that as the conditions were not satisfied, the application was rejected, I think the practical result is the same. Consequently, in our judgment, there was 'an order under Rule 13 of Order IX rejecting an application...for an order to set aside a decree passed ex parte' within the meaning of Order XLIII, rule (1) (d), and. therefore, an appeal lay under Order XLIII.
3. In effect the order of May 80, 1925, was a conditional order for rejection of the application. This conditional order did not finally set aside the decree. Consequently, at the outset, there was no order 'Betting aside the decree' within themeaning of Order IX, Rule 13. Still less did the Court appoint a day for proceeding with the suit as directed by that rule. Under these circumstances we do not think it necessary to comment cm the different practices which seem to prevail in themofussil and on the Original Side of this Court respectively. My brothers Shah and Fawcett tell me that in the mofussil it is usual to make two orders, viz., (a) a preliminary conditional order like that of May 30; and (6) a final order like that of July 18. That, indeed, is the practice pointed out in Jagarnath Sahi v. Kamta Prasad Upadhya. I.L.R. (1913) All 77. On the Original Side, the usual order provides that, if the applicant does not comply with the conditions therein stated, then his application is to be dismissed, and the original ex parte decree to stand. In other words, on the Original Side we usually have one order and not two as is the case here. But, whichever course is adopted, in my opinion, it makes no difference in principle.
4. Accordingly, with great respect, we are unable to agree with the decision of the Bench of this Court in Fakirgowda v. Vishnu das (1925) 28 Bom. L.R. 578 and we prefer the result arrived at in Jagarnath Sahi's case, viz,, that an appeal does lie in a case like the present on a final order rejecting the application.
5. But, to avoid any misconception, I may add that though pro forma an appeal may lie, still in the vast majority of cases, the appeal will be one of those known as 'hopeless,' because the conditions imposed by the lower Court will be reasonable ones, and, accordingly, if they are not fulfilled, the only result will be that the appeal will be dismissed with coats. It can only, therefore, be in exceptional cases such as those where the lower Court has not exercised its discretion judicially, or where quite unreasonable conditions are imposed, that an appeal of this nature can have any chance of success. Or, again, there may be some such case as in Jagarnath Sahi v. Kamta Prasad Upadhya or even (on one construction of the trial Judge's decision) in Fakirgowda v. Vishnudas (1925) 28 Bom. L R. 678 where the trial Judge forms an erroneous judicial opinion of his powers of imposing or altering conditions under the Code. But, we need not go into that.
6. In the result, therefore, we arrive at the answer stated in the beginning of my judgment to the question which has been submitted to us.
7. I agree.
8. I agree.
9. I have nothing to add.
10. I agree. Order IX, Rule 13, seems to contemplate three classes of orders, viz,, (1) an order setting aside the decree ; (2) an order setting aside the decree on certain terms ; and (3) an order rejecting the application to set aside the decree. (1) and (3) present no difficulty. No appeal would lie from (1). An appeal would lie from (3). In the first instance it would appear that no appeal would lie from (2). It is not a final order in the sense in which (1) and (3) are final orders. It seems to leave the matter in abeyance and contemplates a further step. In effect, it seems to bargain with the applicant that if the applicant would do a certain thing in the manner prescribed, the Court would set aside the decree and restore the action to the file ; should the applicant fail to carry out the condition imposed, the Court would reject his application to have the decree set aside. It is open to the Court which imposes the condition to withdraw it or to vary or modify it from time to time as it may deem proper. Failure to comply with the condition imposed would not by itself, in the absence of a provision in the order to that effect, operate as a rejection of the application to set aside the decree. The Court has to ascertain whether the applicant has carried out the terms imposed on him. On proper cause being shown, the Court may, at any time prior to the rejection of the application, withdraw the condition it had previously imposed on the applicant or accept any partial performance of it as sufficient, set aside the decree, and restore the suit to the file; the Court may extend the time for complying with the order. Until the application is finally rejected, no right of appeal would accrue to the applicant. The appellant here is aggrieved by the order of the Subordinate Judge passed on July 18, 1925, rejecting his application to set aside the decree passed against him ex parte. I take it that he is not directly appealing against the previous order of the Subordinate Judge whereby the decree was to be set aside on the applicant furnishing security for Rs. 3,000 within one month. We are not concerned here with the steps the learned Subordinate Judge took before rejecting the application or the reasons which may have actuated him So reject the application, Those are matters which, will be gone into when the appeal is heard on the merits. The question before us at this stage is whether an appeal lies from the order dated July 18, 1925. That order by itself clearly falls under Order XLIII, rule l, Clause (d), of the Code of civil Procedure, and is, therefore appeleable. No rule of construction is pointed out whereby it would be permissible to us to construe the order of July 18, 1925, as comprising the steps by which it was arrived at. There is nothing in the language of Order XLIII, Rule 1, Clause (d), to justify the conclusion that an order of rejection so arrived at is excluded from its operation.
11. With great respect, I disagree with the decision on this point in Fakirgowda v. Vishnudas. (1925) 28 Bom. L.R. 578 With great respect, I agree with the decision in Jagarnath Sahi v. Kamta PrasadUpadhya I.L.R. (1913) All. 77.
12. I answer the question put in the affirmative.
Amberson Marten, Kt., C.J.
1. With reference to what my brother Mirza has just stated, I wish to make it clear that, with the concurrence of pleaders on both sides, the Memorandum of Appeal has been treated as an appeal from the order of July 18, as read with the conditional order of May 30, 1925. Accordingly, my judgment is based on there being an appeal before us in that sense, and on the same meaning being given to the words 'an appeal' in the question formally submitted to us. We are not, therefore, dealing solely with an appeal from the order of July 18.