1. The question which has to be determined by the Full Bench is whether this Court can interfere in revision with an appellate order directing the setting aside of an ex parte decree, when the appellate court had no power, under the provisions of Order 9, Rule 13 to give such a direction.
2. There are two grounds upon which it has bean urged before us that the Court cannot subject this order to revision:
(1) because the party against whom The order has been passed is not without another remedy; and
(2) because the order does not fall within The purview of Section 115 of the Code of Civil Procedure as there is no case which has been decided.
3. Dealing with these propositions in inverse order I would say that the second one of them is untenable. In my opinion we have before us a case which has been decided. It cannot with any show of reason be maintained that the order complained of is a more interlocutory order passed in the course of the trial of the suit, for the suit, had been brought to an end by the passing of the ex parte decree. At the time this order was made there was no suit pending between the parties. TIK) proceedings in which the order was passed were quite distinct from the proceedings constituting the suit.
4. The defendant had had an ex parte decree given against him and was seeking to have it set aside under the provisions of Order 9, Rule 13 which gives him a right to have the decree set aside provided he is able to satisfy the Court which passed it that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. By these proceedings he was endeavouring to enforce a right which did not, and could not, come into existence until the suit had been decided. These later proceedings being distinct from those in the suit, no order passed in the course of them could possibly be an interlocutory order in the suit. The application was rejected by the first Court and the order of rejection was appealed. The order allowing the appeal is a final order not subject to further appeal and |has clearly brought to a termination the proceedings instituted for the setting aside of the ex parte decree.
5. And this being so I have no doubt we have hero a 'case' which has been decided.
6. It would be unprofitable to discuss the various rulings concerning the meaning of the word 'case' as used in Section 115. No definition of the word is to be found in the Code of Civil Procedure and probably no exhaustive definition of the word could be given.
7. The cognate expression 'cause' has been defined in England in the Judicature Act of 1873 as 'including any action, suit or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by the Crown,' and it seems to me that when an attempt is made by a defendant under Order 9, Rule 13 to assert his right to have the ex parte decree set aside there is an 'original proceeding' between a plaintiff and a defendant.
8. The meaning of the word 'case' in Section 115 has been well discussed in Hevenchal Kunwar v. Kanhai Lal (1909) 12 O.C. 405 and I would quote the following passage from page 413 of the report:
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 a different procedure such proceeding may be a case within the meaning of the section (i.e., Section 115).
9. I agree with this view and hold therefore that in the Courts below these proceedings under Order 9, Rule 13 were a 'case' and that that 'case' has been 'decided'.
10. To turn now to the other proposition, the argument is that the applicant here has another remedy available, a circumstance which debars this Court from the exercise of its revisional jurisdiction, and reliance is placed upon the provisions of Section 105, Sub-Section (1) of the Code of Civil Procedure. It is said that in the event of the plaintiff's suit being dismissed after fresh trial he will have a right of appeal and that in the prosecution of the appeal he would be entitled to challenge the order now under discussion by setting forth in his memorandum of appeal an objection to it on the ground of error defect or irregularity 'affecting the decision of the case.' In reply to this it has been argued that as the appeal against the decree in the event contemplated would lie to the same Court which has passed the order now complained of, Section 105(1) would be of little or no avail to the appellant.
11. It would, perhaps, be inexpedient or indiscreet to approach the appellate Court with a plea imputing error in its former order, but if the law allows the plea to be raised, the inconvenience of raising it would he no answer to the argument advanced here on behalf of the opposite party.
12. But I am definitely of opinion that Section 105(1) does not provide any remedy for the prospective appellant in a case like the present.
13. I would observe, in passing, that on the grammatical construction of the latter part of the sub-section just mentioned, it is the 'error, defect or irregularity' in the order which may be pleaded by way of objection, not the order itself; and that the ground of objection must be that the error, defect or irregularity is one 'affecting the decision of the case.' By the words 'affecting the decision' I understand that there has been at work something which has influenced the Judge in the mental process of arriving at his decision, that the error, defect or irregularity in the order has, so to speak, warped the mind of the Judge so as to lead him to a wrong conclusion.
14. If this is the meaning to be attributed to the word 'affect' it seems to me that the word 'decision ' must necessarily be taken to mean the decision upon the merits.
15. The learned advocate for the opposite party, while admitting that this view of the interpretation of the word 'decision' has been taken protests against it as involving the introduction into the text of the sub-section the words 'upon the merits' which are not there, and he has been able to fortify his argument by reference to a number of rulings which support it. But although these words are not to be found in the sub-section they must be supplied by necessary implication if the context so requires, and the 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.'
16. I am quite unable to see how any error defect or irregularity in the order now complained of could in any sense 'affect' the decision of the suit which may follow if the order setting aside the ex parte decree is maintained.
17. The error imputed to the Court below is that in spite of its finding that the defendant had no sufficient cause for non-appearance it has directed the ex parte decree to be set aside. The order which is vitiated by this error has, no doubt, provided the occasion for a fresh trial of the suit and has thereby created a possibility that the new trial may result in a decision different from that which was reached on the earlier trial, but that to me appears to be a very different thing from saying that the decision in the second trial will be, or can be, affected by the preceding error of the appellate Court.
18. I am satisfied that 'decision' in Section 105(1) moans 'decision upon the merits.' That was the view taken in Chintamony Dassi v. Raghunath Sahu (1895) 22 Cal. 981. That case has been followed in this Court in Gulab Kunwar v. Thakur Das (1902) 24 All. 464, in Tasadduq Husain v. Hayat-un-nissa (1903) 25 All. 280 and in other cases more recently decided.
19. I dissent from the contrary view expressed in Nand Ram v. Bhopal Singh (1912) 34 All. 592 and in other cases decided in the same sense. My answer to the reference is that it is competent to this Court to exercise its revisional powers in the case now before us.
20. I agree that the answer should be in the affirmative. I would like to emphasise the fact that the revision before us is from the order of the District Judge passed on appeal. When the appeal was before the Judge, there was certainly a case pending before him. That case has been finally decided so far as the Judge is concerned. No matter is now pending before him at all. His order cannot therefore be called an interlocutory one. We undoubtedly have jurisdiction to interfere 'under Section 115 of the Code of Civil Procedure.
21. As to the contention that we should decline to exercise our discretion because another remedy is open to the applicant. I would say that the supposed remedy would by no means be convenient or expeditious, and could be availed of only after considerable expense had been incurred and time spent. The remedy would at best be open only in second appeal, for the decision by an appellate Court would be binding on the parties, so far at any rate as that Court is concerned. The existence of such remedy accordingly cannot be an insuperable obstacle in the way of our interference.
22. The question whether the propriety of the order setting aside the ex parte decree can be challenged at a later stage in the suit does not directly arise in this case. The answer would depend on the interpretation of the words 'affecting the decision of the case.' Does that expression mean affecting its decision on the merits, or affecting its result? I confess that I do not like the idea of introducing new words into the language of a section in order to give it a suitable meaning. On the other hand the preponderance of authority is certainly in favour of the view that it means 'with reference to its merits.' I however do not feel that I am called upon in this case to express a definite opinion on the true interpretation of Section 105. Even a Full Bench of the Madras High Court, where apparently the view prevails that a revision lies even when a second remedy is open, had no objection to entertain a revision in such a case, vide Neelaveni v. Narayana Reddi (1920) 43 Mad. 94.
23. The question referred for our decision is whether a revision lies from can appellate order restoring a case dismissed for default when the appellate Court had no power under the provisions of Order 9, Rule 13 of the Code of Civil Procedure to direct the case to be restored. The revision was necessitated by a doubt on the part of the referring Bench as to the correctness of the decision in Sheikh Kallu v. Nadir Baksh A.I.R. 1922 All. 441, which held that no revision lay in such a case, the ground of that decision was that the case was covered by the Full Bench ruling in Buddhu Lal v. Mewa Ram A.I.R. 43 All. 1. The Full Bench case is, however, clearly distinguishable. The order passed there was interlocutory. It was an order deciding separately a preliminary issue as to jurisdiction. Here the original suit had been decided when the order complained of was passed. It had been decreed ex parte by the Subordinate Judge, and the Subordinate Judge had rejected an application for restoration. The question is whether the restoration proceedings constituted a separate case within the meaning of Section 115 of the Code of Civil Procedure. I have no doubt whatever that this question must be answered in the affirmative, and this does not conflict in any way with the interpretation placed on the word 'case' by the majority of the Full Bench in Buddhu Lal v. Mewa Ham A.I.R. 1921 All. 1. The original suit had boon, so far as the trial Court was concerned, finally disposed of. The restoration application was a separate proceeding initiated not by the plaintiff in the suit but by the defendant, and the order passed upon it by the appellate Court was in no sense an interlocutory order.
24. The respondent has sought to support his preliminary objection that no revision lies on the further ground that even if a case has been decided, this Court ought not to entertain a revision because the applicant, in the event of the case being ultimately decided against him, can question the validity of the order of restoration under Section 105 of the Civil Procedure Code. There is against him on this point the recent decision of a Bench of this Court in Babu Ram v. Banke Behari Lal 0043/1925 : AIR1925All426 . I am personally not satisfied of the correctness of the interpretation placed on Section 105 in that judgment. Where a suit has been finally decided, but an illegal order is subsequently passed setting aside the decision with the possible result that the case is heard over again and decided in the opposite way, it seems to me very difficult to say that the error committed in restoring the case has not affected the ultimate decision. Many things may affect the decision besides the reasons given by the Judge in his judgment. I am disposed to agree with the view taken by Piggott, J., in Buddhu Lal v. Mewa Ram A.I.R. 1921 All. 1 that an illegal order, and by consequence, the illegality committed in passing that order, has affected the decision of the case, if the order passed by the trial Court is one 'but for which the decision might have been other than it was.'
25. In this case the question does not really arise, because the order was one passed by the appellate Court. Supposing the case is ultimately decided against the applicant, it would be very difficult for him to go to the District Judge and contend in appeal that the order passed by the District Judge himself at an earlier stage of the case was illegal. Indeed, the District Judge might very properly refuse to entertain an appeal at all on the ground that the order previously passed by him was a final order so far as his Court was concerned which was passed after contest and could not be challenged by the applicant at any subsequent stage of the litigation. This objection has therefore no force. I accordingly concur in answering the reference in the affirmative.
26. The case is now returned to the Bench concerned for disposal in accordance with the answer to the reference.
Sulaitnan and Daniels, JJ.
27. The answer of the Full Bench to the question referred is in the affirmative. We therefore have jurisdiction to entertain this revision.
28. The lower appellate Court had itself found that there was no sufficient cause for the defendant for not appearing when the suit was called on for hearing and that his absence was intentional. The case accordingly did not fall under Order 9, Rule 13. It is urged before us that, apart from order 9, Rule 13, the Court had inherent jurisdiction to set aside an ex parte decree. It is to be borne in mind that the order setting aside the decree was passed by the appellate Court to which an appeal had been preferred from an order under that rule. In our opinion it had no jurisdiction outside the provisions of that rule. This was the view clearly expressed by a Bench of this Court in the case of Sheikh Kallu v. Nadir Baksh A.I.R. 1922 All. 441. A Full Bench of the Madras High Court in the case of Neelaveni v. Narayana Reddi (1920) 43 Mad. 94 has come to the same conclusion. The learned advocate for the respondent relies on the case of Ghuznavi v. The Allahabad Bank Lt. (1917) 44 Cal. 929 which, however, is distinguishable inasmuch as there it was not an ex parte decree which had been set aside, but the case itself had been remanded by the appellate Court.
29. In our opinion the Court below had no jurisdiction to set aside the ex parte decree.
30. We accordingly allow this revision, and setting aside the order of the lower appellate Court restore that of the Court of first instance. We allow costs to the plaintiff in all Courts.