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Fakirgowda Bhimangowda Vs. Vishnudas Venkatdas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberAppeal from Order No. 9 of 1925
Judge
Reported in(1926)28BOMLR578
AppellantFakirgowda Bhimangowda
RespondentVishnudas Venkatdas
DispositionAppeal dismissed
Excerpt:
.....the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., ..........and made the following order on october 21, 1924:-' that on defendant's paying to plaintiff the costs decreed, the ex parte decree is set aside, if the payment is made within a fortnight fromtoday.'5. order ix, rule 13, is as follows:-in any case in which a decree is passed esc parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summonts was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing the court shall make an order setting aside the decree as againsh him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:provided that where the.....
Judgment:

Norman Macleod Kt., C.J.

1. The plaintiff sued to recover on a promissory note executed by defendant No. 1 on July 27, 19-0, in his favour for Rs. 9,395 found due at the foot of the dealings between the parties and a cash advance ofRs. 235 made on that date.

2. Defendant No. 2 was the son of defendant No. 1 living in union with him. In their written statement, the defendants stated that defendant No. 2 was needlessly made a party, that defendant No. 1 passed the promissory note sued upon, that Rs. 235 was cash consideration, that an account should be taken as the defendants were agriculturists, that defendant No. 1 deposited a sum of Rs. 8,500 with the plaintiff after the date of the promissory note, and that the sale proceeds of certain cotton had yet to be accounted for.

3. Issues were raised, and, on September 3, 1924, when the suit came on for hearing, defendant No. 1 was absent and his pleader had no instructions, A decree accordingly was passed for the amount claimed against both defendants.

4. The defendants then filed Miscellaneous Application No, 195 of 1924, under Order IX, Rule 13, of the Code of Civil Procedure, to restore the suit on the board. The Judge held there were sufficient grounds for the applicant's absence on the day of hearing, He thought it necessary, however, to impose terms as to costs, and made the following order on October 21, 1924:-' That on defendant's paying to plaintiff the costs decreed, the ex parte decree is set aside, if the payment is made within a fortnight fromtoday.'

5. Order IX, Rule 13, is as follows:-

In any case in which a decree is passed esc parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summonts was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing the Court shall make an order setting aside the decree as againsh him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.

6. It will be seen, therefore, that the Court has power to make an order setting aside an ex parte decree as against a defendant upon such terms as to costs, payment into Court or otherwise as it thinks fit, and whatever may be the conditions imposed by the Court in accordance with the rule, the order is not appealable. If, on the other hand, the Court rejects the application, an appeal lies under Order XLIII, Rule 1, Clause (d).

7. The defendants did not pay the costs of the plaintiff within the time prescribed, but, on November, 5, 1924, they made an application that they should be allowed to give security for costs in lieu of cash payment. The Judge observed at the time :

There being a distinct Court order that the suit to be restored to file if applicant produces the costs on or before November 3,1924, he cannot now request the Court to accept security in lieu of payment of costs. The opponent is not willing to bake security in lieu of payment.

8. At the hearing, on November 6, the plaintiff opposed the application, as the payment was not made as directed. The Judge said;

I see no reason to interfere, the order having been passed, I cannot change it now except with the conseat of the other side.

9. On the same day, he dismissed the main application with costs, The order, which he passed, was in these terms: ' No payment is made. The application is, therefore, dismissed with costs.

10. The defendants have appealed, and the first question is, whether the order of November 5, 1924, is an appealable order. It is further contended that the Judge was under a misapprehension as regards his powers of entertaining the application, when he said he could not alter the condition imposed by the order of October 21, 1924, in the absence of the consent of the other side. We are asked to read the words ' I cannot change it now except with the consent of the other side ' as if they read, ' I have no power, or I have no jurisdiction to change the order except with the consent of the other side. ' But the words need not be read as having only that meaning. The whole judgment must be considered, and the Judge begins by saying, 'I see no reason to interfere, the order having been passed', that is to say, he made the order that costs should be paid in cash, and having made that order he did not think there was any reason for making any alteration, so that the defendants should be allowed to give security instead of paying cash. When the Judge said : ' I cannot change it now except with the consent of the other side,' those words can be read as meaning ' I am not going to change the order unless the other side consents ' and not as meaning that the Judge considered he had no power whatever to alter the order unless the other side consented.

11. However that may be, the really important question is, whether the order of November 6, 1924, was an order rejecting the application, so as to be appealable under Order XLIII, Rule 1, Clause(d). We have been referred to the case of Jagarnath Sahi v. Kamta Prasad Upadhaya I.L.R.(1913) All. 77 There, on an application to set aside an ex parte decree, the Court passed an order in favour of the applicants, but conditional on their paying to the plaintiff by a certain date a sum of money as damages. This condition was not fulfilled, and the Court holding that it had no jurisdiction to receive the prescribed payment after the date fixed-disallowed the defendants' application to set aside the decree, It was contended on behalf of the respondents that no appeal lay, as the order under appeal was merely an order re-fusing to extend time, for which no appeal is provided. The Judges considered that, as it was admitted that an appeal lay from an order rejecting, though not from an order allowing, an application under Order IX, Rule 13, the appeal before them was in substance and reality an appeal against the formal order which followed on the judgment of Apri1 12, 1913, by which formal order the application for setting a tide the ex parte decree was finally disallowed, and therefore an appeal lay.

12. Now, the result of that decision, if it were to be followed, would be that although a party who applies to set aside an ex parte decree under Order IX, Rule 13, cannot appeal against the order allowing the application upon certain conditions, still by not complying with those conditions, he can appeal against the order dismissing the application because those conditions have not been complied with. In our opinion, with all respect, that is not a correct exposition of the law applicable to the case. Once it is considered that a Judge, to whom an application for setting aside an ex parte decree is made, has an absolute discretion to impose conditions, and no appeal lies against the imposition of any condition which the Judge seems fit to make, then the applicant by not complying with those conditions, with the result that his application is rejected, cannot by such conduct make an order appealable which, in the first instance, was not appealable.

13. The application was not rejected on the merits, but was rejected because the conditions which were lawfully imposed on the defendant were not complied with.

14. In our opinion, therefore, no appeal lay against this order, and the appeal will be dismissed with costs.


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