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Radha Mohan Datt, Silk Merchant Vs. Abbas Ali Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All294
AppellantRadha Mohan Datt, Silk Merchant
RespondentAbbas Ali Biswas and ors.
Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under.....1. the facts of the. case which have occasioned this reference to the full bench lie within a narrow orbit and may be briefly indicated. radha mohan datt brought a suit in the court of the munsif of benares against several defendants for recovery of rs. 3,500. defendant 1, remained absent throughout and did not contest the suit. defendants 2 to 4 were represented by counsel. they appear to have raised certain objections with regard to commission. defendants 6 to 7 repudiated all connexion with the transaction which had given rise to the claim and impugned their liability in toto. the case was fixed for final disposal on 4th april 1929. on this date, defendants 2 to 4 through their pleader asked for grant of an instalment decree. defendants 5 to 7 also appeared through a pleader and prayed.....
Judgment:

1. The facts of the. case which have occasioned this reference to the Full Bench lie within a narrow orbit and may be briefly indicated. Radha Mohan Datt brought a suit in the Court of the Munsif of Benares against several defendants for recovery of Rs. 3,500. Defendant 1, remained absent throughout and did not contest the suit. Defendants 2 to 4 were represented by counsel. They appear to have raised certain objections with regard to commission. Defendants 6 to 7 repudiated all connexion with the transaction which had given rise to the claim and impugned their liability in toto. The case was fixed for final disposal on 4th April 1929. On this date, defendants 2 to 4 through their pleader asked for grant of an instalment decree. Defendants 5 to 7 also appeared through a pleader and prayed for a postponement of the case to enable them to have certain witnesses examined on commission. This petition was rejected. Their counsel intimated that he had no instructions to proceed with the case and withdrew from the proceedings. The case proceeded to trial on the merits. An issue was framed anent the liability of defendants 5 to 7. Witnesses were examined by the plaintiff. These witnesses were believed and the Court came to the conclusion that all the defendants were liable. The result was that on 4th April 1929 a decree was passed on the merits against all the defendants. No appeal was preferred by defendants 1 to 4.

2. On 29th April 1929 defendants 5 to 7 lodged an application in Court, which purported to be under Order 9, Rule 13, Civil P.C. Paras. 1 and 2 of this application are material:

(1) That on 4th April 1929, the opposite party No. 1 obtained an ex parte decree against the applicants for Rs. 3,500 odd, (2) That the applicants were prevented from appearing in the Court on ,that date as they failed to catch the train and they then sent a telegram to that effect to their pleader, which was received here at a late hour.

3. On these allegations, they prayed that the ex parte decree be set aside and that the suit be restored to its original number. This application was supported by an affidavit of Rahmat Ullah Biswas, who was a defendant in the action.

4. The application was resisted by the plaintiff on the ground that it was misconceived, that the decree passed against the applicants was not an ex parte decree, that the suit had been determined and decided on the merits and that there was no sufficient cause for discharging the decree and restoring the suit. Reliance was placed on the explanation appended by this Court to Order 17, Rule 2, Civil P.C. which runs as follows:

Explanation.-No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application.

5. The learned Munsif by his order, dated 16th July 1929, allowed the application of the defendants, set aside the decree and restored the suit on the condition of the applicants paying Rs. 100 as damages to the plaintiff within two weeks.

6. It is not clear whether the Munsif treated the application as one under Order 9, Rule 13, Civil P.C. The opening sentence of his order is indicative of some doubt in his mind:

This is an application for setting aside a decree dated 4th April 1929 described as an ex-parte decree passed by this Court.

7. There were no grounds before him for entertaining the application as one under Order 9, Rule 13, of the Code, or for allowing the same, and the ground for his decision appears to us to be extremely curious. He states:/

The conduct of the applicant however betrays gross negligence and carelessness even if his allegation be accepted as true. He started by the very last train and then he did not take care that he should not miss it. I think that the application should be allowed only on payment of adequate damages. In fact the application deserves to be rejected, but I think the law is supposed to be laxly applied in such matters.

8. If Order 9, Rule 13, applied to the case, the applicants had to satisfy, the Court (1) that the summons was not duly served, or (2) that they were prevented from appearing for sufficient cause. Neither of these conditions having been fulfilled, the Munsif had no jurisdiction to set aside the decree and restore the suit. It is clear however that Order 9, Rule 13, did not apply to the facts of the case. The decree passed against the applicants was not an ex parte decree. An issue was framed relating to their liability and that issue was decided on the merits. The defendants having appeared in the suit through their counsel, they could not in law be deemed to have failed to appear in the action. Explanation to Order 17, Rule 2 which we have set out above is clear and conclusive on this point.

9. Aggrieved by the order of the Munsif dated 16th July 1929, the plaintiff filed a civil revision to this Court under Section 115, Civil P.C. Defendants 5 to 7 resisted the application on two grounds : (1) that the revisional jurisdiction of the High Court could not be exercised in favour of the plaintiff, because he could impugn the correctness of the order passed by the Munsif as a ground in the appeal which might be preferred from the decree which might be passed in the suit; and (2) that the proceedings terminating in the order, dated 16th July 1929, was not a ' case decided' within the meaning of Section 115, Civil P.C.

10. It has been held by this Court in a number of cases, notably in Sheo Prasad Singh v. Kstura Kuar [1888] 10 All. 119 that the revisional powers of the High Court under Section 115 (corresponding to Section 622, Act 14 of 1882) should not be exercised except as a last resort for an aggrieved litigant. The section itself provides that revision is not entertainable where an appeal lies to the High Court. This clearly contemplates a case where no appeal lies either in the form of a first appeal or a second appeal from a decree, or from an interlocutory order under Sections 101 and Order 43, 'Civil P.C. It has been contended however that although the order is not exposed to a frontal attack in the shape of a direct appeal to the High Court, it can be impugned as a ground of objection in the memorandum of appeal from the decree which may be eventually passed in the suit itself. Reliance has been placed upon Section 105 of the present Civil P. C, which corresponds to Section 591, Act 14 of 1882. Clause (1) of the section runs as follows:

Save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

11. It has been argued that the order of the learned Munsif setting aside the decree is one affecting the decision of the case. There is a preponderance of authority that the words 'affecting the decision of the case' mean 'affecting the decision of the case on the merits.' The authorities on this point however are not uniform. As there is a conflict of authority on the points in issue the following questions have been referred to the Full Bench:

1. Whether an appeal indirectly lies under Section 105, Civil P.C., from an order setting aside an ex parte decree 1

2. Can the High Court interfere in revision to set aside an order passed by a Subordinate Court of first instance purporting to exercise its powers under Order 9, Rule 13?

12. In dealing with the questions under reference, we must remember that a right of appeal is the creature of statute. An order granting an application under Order 9, Rule 13, Civil P. C, is not a decree within the meaning of Section 2 (2) of the Code and is not appealable as such. Certain interlocutory orders are appealable under Section 104 and Order 43, Civil P. C, but this is not one of them. But a right of appeal has been expressly provided from an order refusing to set aside an ex parte decree. This provision was in the old Code. This provision is not to be found in the Civil Procedure Code now in force. Now this could never have been a mere freak on the part of the Legislature to provide for an appeal in the one case and not to provide' for an appeal in the other case; nor could this matter be regarded as a casus omissus. We have every reason to believe that the act of the legislature was deliberate and there was an undoubted intention to give a finality to an order setting aside an ex parte decree under Order 9, Rule 13, Civil P.C. It may not be useful to probe into and discuss the policy underlying the text, but it is obvious that the legislature has a marked leaning for a procedure, promotive of the decision of a case upon the merits, and therefore it is natural that express provisions should have been made to ensure the attainment of that end.

13. Under Section 105 (1), the order setting aside an ex parte decree cannot be set forth as a ground of objection in the memorandum of appeal, but any error, defect or irregularity in the said order may be set forth. This is the natural and grammatical construction of the text. The section is no warrant for the proposition that the order itself can be open to challenge in the appeal preferred from the decree passed in the suit itself.

14. It has been argued that the words 'affecting the decision of the case' cannot be construed to mean 'affecting the decision of the case on the merits.' The legislature did not intend to provide for a rule in Section 105 with reference to any error, defect or irregularity at variance with the rule laid down in Section 99 of the Code. In the latter section, it has been provided that no decree shall be reversed or substantially varied etc. in appeal on account of any error, defect or irregularity in any proceeding in the suit not affecting the merits of the case. In both these sections the legislature appears to have had the same objective in view. |In construing a statute, it is not permissible to import into its text any words of (limitation unless the text requires those words by necessary implication. We are however, not importing any new words into the text, but we are construing the words 'affecting the decision of the case.' The word 'affect' predicates that the error, defect or irregularity in the order has influenced the conclusion in such a way that an unjust result has been arrived at in the decision of the case on the [merits. We respectfully dissent from (the view of Heald, J., in M. S. Mahomad v. Collector of Tomigue A.I.R. 19l7 Rang 150. We are not importing into the text any words which are foreign to it. Hare the words were in by necessary implication and we are only construing the text.

15. Karamat Husain, J. in Nand Ram v. Bhopal Singh [1912] 34 All. 592 has observed much to the same effect as Heald, J.:

There were no words in Section 622, Civil P.C., 1882, nor are there any in Section 115, Civil P.C., 1908, limiting a right of attack to such words only as are affecting the decision of the case. With reference to its merits, and in the absence of any such limitation, the Court has no power to read such limitation into the section.

16. If the context requires that the words should be supplied, we do . not offend against any known canon of construction by supplying those words. We agree with the view of Lindsay, J. in Ram Sarup v. Gya Prasad : AIR1925All610 that

although those words are not to be found in the subsection, they must be supplied by necessary implication if the context so requires and a use of the word 'affect' does in my opinion, render it necessary that the word 'decision' should be taken to mean decision upon the merits.

17. We do not think that where the legislature did not intend to provide for an appeal from an order setting aside an ex parte decree, it could have intended to produce the same result in an indirect way by allowing the propriety of the order to be questioned in an appeal from the decree ultimately passed in the case. We have already noticed, and we do emphasise upon the fact, that upon its grammatical construction Section 105 does not favour the contention of the respondents, for that which can be made a ground of appeal is not the order itself but any error, defect or irregularity in the order. Moreover it is not possible to conceive how the error, irregularity or defect in the order setting aside the ex parte decree could affect or influence the merits of the case. The trial of the case could not commence till the ex parte decree had been discharged. The setting aside of the ex parte decree was, therefore a condition precedent to an enquiry or trial into the merits of the claim and the retrial may be described as a second stage in a history of the case, but the two stages are distinct and independent. The second stage does not begin till the first stage has closed.

18. It may not be profitable to review in detail the entire case law on the subject. In Gulab Kunwar v. Thakur Das [1902] 24 All. 464 a Bench of this Court accepted the interpretation put by the Calcutta High Court in In re Chintamani Dasi v. Raghunath Sahu [1895] 22 Cal. 981 and held that the meaning of the words in Section 591 (of Act 14 of 1882) 'affecting the decision of the case' was that it must be shown that the error, defect or irregularity had affected the decision of the case on the merits. The same view was taken in Tasadduq Husain v. Hayatunnissa [1903] 25 All. 280. In Puran Mal v. Tarif [1915] 30 I.C. 2 the same question came up before a Bench of this Court after the passing of Act 5 of 1908, and it was held that the propriety of the order setting aside the ex parte decree could not be questioned in the appeal from the decree in the suit, and Section 105(1), Civil P.C., did not apply. Richard C.J., observed as follows:

No appeal is given by the Court from order setting aside an ex parte decree. It cannot be taken exception to later on in a regular appeal because it did not affect the merits or the case. This has been repeatedly held by this Court.

19. In Niddha Lal v. the Collector of Bulandshahr [1916] 35 I.C. 209, the same matter came up before a Bench of this Court but in another form. The suit having abated by reason of the death of the plaintiff it was dismissed. Subsequently the suit was restored under Order 22, Rule 9 (2), Civil P.C. and was eventually decreed on appeal. The question raised was as to. whether the order restoring the suit could be made a ground of attack in an appeal from the decree passed in the suit. It was held that the words 'error, defect or irregularity' in Section 105, meant error, defect or irregularity affecting the decision of the case on the merits, and any question as to the propriety of an order setting aside the abatement under Order 22, Rule 9 (2), Civil P.C., could not be questioned under Section 105. In Babu Ram v. Banke Behari Lal 0043/1925 : AIR1925All426 a Bench of this Court of which one of us was a member, held that the words 'affecting the decision of the case 'used in Section 105, of the Code are equivalent to affecting the merits of the case. The words were interpreted in the same sense by Lindsay, J., in Ram Sarup v. Gaya Prasad (4) which has already been referred to. Sulaiman J. did not feel that he was called upon to express a definite opinion on the interpretation of the controversial text. Daniels, J., was of opinion that the order in question was such that it must be taken to have affected the ultimate decision.

20. We would repeat that an appeal against an order is not the same thing as advancing a ground of appeal about error, defect or irregularity in the said order, a distinction which has not always been kept in view.

21. The Calcutta High Court has consistently construed the words 'affecting the decision of the case' to mean 'affecting the decision of the case with reference to the merits of it.' Chintamani Dasi v. Raghunath Sahoo (6) and Krishna, Chander Goledar v. Mahesh Chandra Saha [1905] 9 C.W.N. 584. We respectfully adopt the following observation by Woodroffe, J., at p. 587:

The reason why an order made under Section 108 has been held not to affect the merits is that the order does not determine the merits but merely ensures a rehearing on the merits.

22. In Shyama Bibi v. Modusudan Mahonto : AIR1925Cal766 a Bench of the Calcutta High Court held that an order setting aside abatement allowing substitution of parties passed in a final decree in a mortgage suit could not be questioned in appeal from the decree, where such order was passed before or simultaneously with the decree, as it did not affect the decision of the case on the merits within the purview of Section 105, Civil P.C.

23. A similar view was taken by the Bombay High Court in Balabai v. Ganesh [1903] 27 Bom. 162. In Dhondu v. Bawan Govind A.I.R. 1927 Bom. 455 the same view was reiterated and a Bench of the Bombay High Court refused to follow the decision of this Court to the contrary in In re Nand Ram v. Bhopal Singh (3). On a line with these decisions are the pronouncements of the Lahore High Court in In re Fazel v. Hashmati [1916] 40 P.R. 1916 and Sundar Singh v. Nighiya A.I.R. 1925 Lah. 466.

24. Upon a consideration of the authorities we find that Section 591, Act 14 of 1882, had been the subject of judicial construction. The text of that section has been retained in Section 105, Act 5 of 1908. This circumstance is indicative of the fact that the interpretation put upon the earlier statute has been accepted by the legislature. We would refer to the following passage in Halsbury's Laws of England, Vol. 27, p. 142:

Where words or expressions in a statute are plainly taken from earlier statutes in pari materia, which have received judicial interpretation, it must be assumed that Parliament was aware of such interpretation and intended to be followed in later enactments ..., The rule is especially applicable in the case of consolidatory codes.

25. It is apparent from the above that the general trend of decisions is in favour of the 'proposition that the words 'affecting the decision of the case' mean 'affecting the decision of the case on its merits.'

26. There are some cases however in which the above interpretation has not been accepted. In Gopala Chetly v. Subbier [1903] 26 Mad. 604 a decree for money having been passed against two defendants, defendant 2 alone applied under Section 108, Act 14 of 1882, corresponding to Order 9, Rule 13 of the present Code, for the setting aside of the decree on the ground that he had not been duly served with the notice of the suit. The Munsif set aside the decree not only against this defendant but in its entirety. When appealing against the final decree the plaintiff raised the objection that the decree should not have been set aside as against defendant 1. This plea was sustained by the Madras High Court. The learned Judges observed:

There being no appeal against such an order it is open to the appellant in appealing against the final decree in the case to object to such order as contrary to law. He accordingly contends that the decree passed ex parte should be restored as against defendant 1. In our opinion the contention is well founded under the circumstances of the case.

27. We may observe that Section 591, Civil P.C.has not been referred to or discussed in the judgment, and ex facie the ruling does not proceed upon a construction of the text. Neither any rule of statute nor any authorities have been cited in support of the view, and we find it difficult to understand upon what principle the conclusion was arrived at in this case. This decision was followed in Athamsa Rowther v. Ganeshan A.I.R. 1924 Mad. 890. This was a very special case. It was held that an order setting aside an ex parte final decree in a mortgage suit, while retaining the ex parte preliminary decree therein, is an order affecting the decision of the case:

And the propriety of such an order could be challenged in an appeal against the decree finally passed in the suit.

28. The ratio for the decision has been set out in these terms:

It seems to us that the present case is another in which an order setting aside an ex parte decree may be properly attacked. It is clear that, when the result of setting aside of the order has been the hearing of the suit de-uovo on its merits, no injustice would be done to anyone by the decision of the case and the final result is not affected; but in the present case the result would be very different. The defendant has deliberatly, no doubt for good reasons from his own point of view, refrained from opening the whole suit and only wants the final decree to be reopened, because he-thinks he has a good point of limitation which will enable him to render the preliminary decree futile. So far from courting a decision on the merits, ho is trying to burk such a decision altogether. In such circumstances, we cannot but hold that an order setting aside the ex parte final decree, while retaining the ex parte preliminary decree, is an order affecting the decision of the case.

29. It is patent therefore that, according to this view, an order setting aside the ex parte decree is not in all cases an order affecting the merits. The view of Wallach J., in this case has been followed by the same Court in Paidapati Venkatantrasu v. Vikram Kotayya A.I.R. 1926 Mad. 900. In this case the District Munsif returned the plaint for presentation to the revenue Court. On appeal the District Judge held that the suit was triable by' the Munsif and the claim was remanded-The Munsif decreed the suit. The Sub-ordinate Judge on appeal confirmed that decree. On second appeal to the High Court the decrees of the two Courts below were set aside and the order of the original Court directing the return of the plaint for presentation to the revenue Court was restored. A Letters Patent appeal was preferred from the order of the High Court directing the remand. This was heard by Phillips and Madhavan Nair, JJ. They quote a passage from the judgment of Wallach, J., in the last mentioned case and' observe as follows:

It seems to us that these observations made with reference to an order setting aside ex parte decrees may well be applied as tests in considering whether a remand order of the nature we are dealing with affects the decision of the case.

30. Within the meaning of Section 105, Clause (1). Civil P.C. does the order in question lead to an enquiry and investigation of the case as a result of the enforcement, or does it prevent such an enquiry? In the former case, the final decision of the case is not affected merely by reason of the enquiry held by one Judge rather than another, whereas in the latter the result is different. In arriving at a decision as to whether an interlocutory order affects the decision of a case within the meaning of Section 105, Clause (1), Civil P.C.,

the nature of the order in relation to the facts of the particular case has to be considered.

31. By allowing the interlocutory order to stand or by setting it aside the consequences which ensue are manifest. In the first case the enquiry is prevented. In the second case, the order setting aside the interlocutory order opens the door to an enquiry. In the sequence of events the first step is the setting aside of the order and the second step is the enquiry. If however the order is maintained and not set aside, the door to further enquiry is closed and no decision on the merits is possible. But in either of these two cases, the decision remains unaffected and uncontrolled by any question affecting the merits of the order itself.

32. In Nand Ram v. Bhopal Singh (3), which was heard by Knox and Karamat Husain, JJ., the principal judgment was delivered by Karamat Husain, J., and he ruled that an application under Section 115, Civil P.C. could not be entertained in the case of those interlocutory orders against which no immediate appeal lay. A remedy was supplied by Section 105 which provided that they might be made a ground of objection in appeal against the final decree and that an order under Order 9, Rule 13 setting aside an ex parte decree was not open to revision, for the propriety of that order could be attacked in an appeal from the final decree. It is curious that no reference was made by the learned Judge to the earlier decisions of this Court in Gulab Kunwar v. Thakur Das (5) and Tasadduq Husain v. Hayatunnissa (7) which were decisions directly in point and which were in the teeth of the view which commended itself to the learned Judge. He noticed that there was a conflict of opinion between the Calcutta High Court and the Madras High Court. He agreed with the learned Judges who decided the case in Gopala Chetty v. Subbier (17). The text of Section 105, Civil P.C., was not examined and the entire fabric rests upon the following sentences:

There were no words in Section 622, Civil P.C. of 1882; nor are there any in Section 115, Civil P.C. of 1908, limiting the right of attack to such orders only as are 'affecting the decision of the case' with reference to its merits, and in the absence of any such limitation a Court has no power to read such a limitation into the section.

33. It is submitted with respect that the rule of construction laid down here is too narrow. The material question for consideration was what is the idea connoted by the use of the word 'affect.' We are of opinion that 'with reference to its merits' is necessarily involved in the connotation of the word 'affect' having regard to the context which follows. We have dealt with this aspect of the case in the earlier part of our judgment, and we do not think it necessary to canvass the matter any further. It may be observed that Knox, J., agreed in rejecting the application but did not associate himself with his learned colleague in his treatment of Section 115 of the Code.

34. In Sheikh Kallu v. Nadir Bux A.I.R. 1922 All. 441, Walsh and Wallach, JJ., were emphatic in their view that the order of the Munsif setting aside the ex parte decree was one without jurisdiction, as the conditions laid down in Order 9, Rule 13, Civil P.C. did not occur in the case:

This is an order, in our view, entirely without jurisdiction, an order which no Judge ought ever to make and which there is nothing in the Code to justify.

35. The learned Judges however found themselves unable to interfere with the order in revision, because they considered that the case was governed by the decision in In re Nand Ram v. Bhopal Singh (3), which according to them had by implication been approved by a Full Bench in the recent case of Buddhoo Lal v. Mewa Ram A.I.R. 1921 All. 1. In the last mentioned case, the question which arose was as to whether the finding of the Munsif on one out of several issues, that he had jurisdiction to try a suit, was open to revision under Section 115, Civil P.C. It was held by the majority of the Full Bench that no revision lay inasmuch as the order against which the application in revision had been filed was merely a finding by the trial Court on one out of seven issues arising in a suit which was still pending in that Court. No question relating to the construction of Section 105 was raised or was necessary. The whole argument appears to have hinged upon the connotation of the term ' case ' in Section 115. Nand Ram v. Bhopal Singh (3) was not cited before the Full Bench; nor was that decision relevant for the purpose of that case. We are of opinion that this case has no bearing upon the first question referred to us. We are of opinion that it has a bearing upon the second question. But we are not prepared to endorse the proposition that an order setting aside an ex parte decree is an order of the same character as a finding of the Court in a pending suit that it has jurisdiction to try the suit.

36. Upon a consideration of the text of the statute, and of the principal authorities bearing upon the same, we have no doubt that the propriety of an order setting aside an ex parte decree cannot be set forth as a ground of objection in a memorandum of appeal from the decree, ultimately passed in the suit under Section 105, Civil P.C. Our answer therefore to the first question under reference is in the negative.

37. We have already held that an order setting aside an ex parte decree was not an appealable order. We have also held that the propriety of the said order could not be challenged in an indirect way in an appeal from the final decree under Section 105, Civil P.C. We have no doubt that the decree against defendants 5 to 7 was not an ex parte decree and that the said defendants had failed to establish that the conditions necessary under Order 9, Rule 13, Civil P.C. existed in the case. The Munsif therefore had no proper grounds to set aside the order, and there being no legal warrant for his view, that ' the law is supposed to be rather laxly applied in such matters, he acted with material irregularity in the exercise of his jurisdiction. Where the language of the law is clear, as it is in the present case, there was no room for speculation, and the learned Munsif was under an obligation to administer the law literatim ad verbatim. It has been strongly contended however that the proceedings culminating with the order in controversy was not a case ' within the meaning of Section 115, Civil P.C. The term ' case ' has not been defined in the Code. It may indeed be doubted if the term is capable of an exhaustive definition. In Bala Krishna Udayar v. Vasudeva Aiyar A.I.R. 1917 P.C. 71 (at p. 269 of 45 I. A.) the Judicial Committee observed as follows:

No definition is to be found in the Code of the word ' case. ' It cannot in their Lordship's view, be confined to a litigation in which there is a plaintiff who seeks to take a particular relief in damages or otherwise against the defendant who is before the Court, It must, they, think, include an ex parte-application such as that made in this case, praying, that persons in position of trustees or officials should perform their trust or discharge their official duties.

38. Their Lordships concurred therefore with the High Court in thinking that the matter adjudicated upon was a ' case ' with in the meaning of Section 115 of the Code. ' From this it would appear that the term ' case ' had a wider denotation then the term ' suit. '

39. In Muhammad Ayab v. Muhammad Ahamud [1910] 32 All. 623 (at p. 625) Chamier, J., was not prepared to subscribe to the view that no proceedings could be a case ' unless it terminated in a decree. In Hevanchal Kunwar v. Kanhai Lal [1909] 12 O.C. 405 (at p. 413) the learned Judges are reported to have observed as follows:

Where there are independent proceedings arising out of a case, such as a proceeding to restore a case dismissed in default, or to set aside a decree ex parte, for which the legislature has provided an independent remedy or different procedure, such proceeding may be a case within the meaning of the section.

40. This passage was quoted with approval by Lindsay, J., in Ram Samp v. Gaya Prasad (4). We hold that an order setting aside an ex parte decree is a case and is not merely an interlocutory order during the pendency of the suit. As soon as an ex parte decree was passed, the curtain was run down upon the suit itself. There was no pending suit before the Court. Proceedings in the suit could not be revived till the ex parte decree had been set aside. The proceedings leading up to the setting aside of the ex parte decree were proceedings distinct from and independent of the proceedings constituting the suit. This was the view taken by Lindsay, J., in Ram Sarup v. Gaya Prasad (4) and we agree with this view. These proceedings were in the order of sequence anterior to the proceeding in the suit itself which did not commence till after the ex parte decree had been discharged. From the very nature of things, therefore these could not be treated as interlocutory proceedings in the suit. We ought not to lose sight of the fact that the order under Order 9, Rule 13. merely ensures the retrial of the suit upon the merits and is not an order in the suit itself. In Bhola Nath v. Raghunath : AIR1929All743 it was held by a Bench of this Court that the word ' case ' did not necessarily mean 'suit' but could mean a proceeding and where a proceeding in a suit is terminated, it certainly was a case within the meaning of Section 115.

41. We have no doubt that we have before us a proceeding distinct from the suit itself which commenced by an application to set aside the ex parte decree and which terminated by an order discharging the said decree. We are therefore of opinion that in a case where the order setting aside a decree has been passed by a Court in defiance of the provision of Order 9, Rule 13, Civil P.C., the matter is a 'case decided' under Section 115, Civil P.C., and this High Court is entitled to interfere in revision. We respectfully dissent from the view of the learned Judges in Kallu v. Nadir Bux. We may point out that our view as indicated above is fortified by the decision of Mr. Lindsay and Mr. Rafiq in Habib v. Rai Debi Bux [1912] 14 1. C. 221 and Abdul Aziz v. Punjab National, Bank Ltd., Lahore 107 I.C 395.

42. Our answer to the second question under reference is in the affirmative.


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