(1) This is a revision petition directed against the order made by the Court below noting aside the ex-parte final decree made in a partition suit. After the preliminary decree to a fourth, share in the family properties and when the suit was posted for the preparation of the final decree, on a date on which the defendants were absent the Court below made the final decree. This application presented by the defendants under Rule 13 of Order IX of the Code of Civil procedure succeeded in the lower Court and this ex-parte decree was set aside.
(2) The petitioner before me who is the plaintiff, feeling aggrieved by the order made by the Court below setting aside the ex-parte decree has presented this revision petition.
(3) The Court below set aside the ex-parte decree on the ground that the defendants and their pleader could not have been aware of the date to which the suit had been posted and that there was there fore sufficient cause for the absence of the defendants on the date on which the ex-parte decree was made. That finding being a finding on a question of fact is not liable to be disturbed in revision.
(4) But Mr. Jahagirdar appearing on behalf of the petitioner has urged several other contentions in support of this revision petition. The first argument presented was that the Court below could not have exercised jurisdiction under Rule 13 of O .IX of the Code of Civil Procedure since the proceedings in which the final decree was made were exception proceedings to which the provisions of Rule 15 of Order IX were not applicable. This contention has merely to be stated to be rejected.
(5) It is well settled that until the final decree is made in a partition suit, the proceedings, continue to be a suit. It would thus be impossible for Mr. Jahagirdar to suggest that the exparte final decree in this case was made in execution proceedings.
(6) The next, contention was that under Rule 13 of Order IX of the Code of Civil Procedure an ex-parte final decree could not be set settle by a Court since after the preliminary decree was made the suit came to an end. Its support of this contention reliance is placed on the pronouncement of Ray J. In Surendra Kumar Singh v. Mukundlal Sahu, AIR 1948 Pat. 68.
(7) There is no doubt an observation by his Lordship in that case that the provisions of it. 13 of O . IX of the Code of Civil procedure had no application to a final decree and in support of that observation reliance was placed on an unreported decision of Harries C.J. and Brough, J. In Birendra Prasad Sukul v. Smt. Kiranbala Mitra (Pat). It is clear that Ray, J. Was personally convinced that the contention that Rule 13 of Order IX of the Code of set aside the final decree by the decision in the unreported case to which I have already referred with the result that he set aside the order which had been made by the Court below setting aside the exparte decree under the provisions if Rule 13 of Order IX of the Code of Civil Procedure.
(8) On the strength of this decision Mr. Jahagirdar strenuously contended that the Court below in this case should not have set aside the exparte final decree under the provisions of Rule 13 of Order IX of the Code of Civil Procedure. With great respect to Ray. J. I am unable to agree with his view that the provisions of Rule 13 of Order IX of the Code of Civil procedure are inapplicable to an ex-parte final decree. It is difficult to understand why under those provisions a Court cannot set aside an ex-parte final decree.
(9) Rule 13 of Order IX of the Code of Civil Procedure reads:
'In any case in which a decree is passed ex-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 summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on the for hearing, the Court shall make an order setting aside the decree as against him upon such forms as to costs, payment in to court or otherwise as it thinks fit, and shall appoint a day for proceeding with this suit.
(10) It is clear that the revisions of this Rule are applicable to all cases where an ex-parte decree is made against the defendant in a suit. The argument addressed by Mr. Jahagirdar that after the preliminary decree for partition was made in the suit declaring the plaintiff to be entitled to a fourth share is in any opinion devoid of substance. The definition 'decree' contained in Sec 2(2) of the code of Civil Procedure is complete answer to this argument. As defined by that section a decree may be other preliminary or final and if the adjudication completely disposes of the suit it is a final decree.
(11) It is thus clear that untill the final decree in the partition suit was made in this case there he regarded to be still pending on the file of the court below. This is not a case in which the preliminary decree itself completely disposed of the suit which sometimes nay happen where a decree is both preliminary and final. It is indisputable that in this case the preliminary decree did not completely dispose of the suit because there were many matters still to be decided in the suit which could be decided only by the final decree.
(12) In the proceedings which have to be conducted by a Court after it makes a preliminary decree, for the purpose of preparing the final decree to be prepared in the suit, the parties still continue to be plaintiffs and defendants and it would not be right to regard them as, decree besides and judgment-debtors.
(13) As pointed out by Bose J. (As he then was in Reghubir Prasad v. Pyarelal Amarchand, AIR 1944 Bag 181 the proceedings in which the final decree is prepared are proceedings in a suit, that attracting the provisions or not only R.13 of Order Ex. Of the Code of Civil Procedure but also of Rule 2 of Order XVII.
(14) On a reading of Rule 13 of Order Ix of the Code of Civil Procedure it becomes close that the provisions of the Rule are in much applicable to proceedings in which a preliminary decree is made as they are to the proceedings in which the final decree is made. There is preponderance of authority to support of this view. (See Mt. Fahiman v. Awadh Beharilal, AIR 1929 All 279 Pratap Narain v. Bhagawati Singh, AIR 1939 Oudh III, Hirekhan v. Mt. Narbada Bai, AIR 1952 Nag 177.
(15) In the view that I take in this case, this revision petition has to fail. But it is seen that in an appeal preferred to this Court by the defendants for getting the ex-parte decree set aside, that Court made an order in December 5, 1957 that during the pendency of the appeal the defendants should pay every month to the plaintiff a sum of Rs. 75/- until the final decree was prepared in the case. There is some controversy between the parties as to whether the payment ordered by the court on that date has been made or has not been made. Mr. Datar asserts that the defendants made that movement to the plaintiff till September 14,1959 on which date the appeal was withdrawn and dismissed. But Mr. Jahagirdar appearing on beheld of the plaintiff does not admit that the plaintiff has been paid the amount ordered to be paid to him till that date.
(16) Although in my opinion, as I have already indicated, this revision petition has to fail and the order made by the Court below sitting aside the ex-parte final decree is not liable to be disturbed, I dismiss this revision petition subject to the condition that the defendants should pay with effect from December 5, 1957 a sum of Rs. 75/- every month to the plaintiff until the final decree in the partition suit issued and all the questions, between the parties are completely adjudicated upon. What ever amounts have been paid by the defendant to the plaintiff so far after December, 1957 will be given credit to, and if any amounts have been deposited in Court by the defendants, those amounts shall be paid over to the plaintiff. What ever amounts have not been paid so far to the plaintiff shall now be paid.
If there are any arrears payable by the defendant till this date, those arrears will be paid in two equal monthly installments. Half of that amount shall be paid on or before February, 18, 1961 and the remaining half on or before March 18, 1961. The future payments to be made by the defendants to the plaintiff shall commence from March 1, 1961 and on the corresponding day of each succeeding month is sum of Rs. 75/- shall be paid as directed, by the defendants to the plaintiff. In the even of the defendants committing default in the payment of any of these amounts directed to be paid by this order the plaintiff will be at liberty to execute the order made by this court and recover it from the defendants.
(17) In this revision petition I make no order as to costs.
(18) Order accordingly.