1. The facts out of which this application in revision has arisen are as follows. The plaintiff (opposite party), Cheddu Singh, instituted a suit to enforce a right of pre-emption against Dhani Ram (vendor) and Ganga Ram (vendee). The present applicant alleged that the real sale price was Rs. 50 but that Rs. 500 had been fraudulently entered in the sale-deed to defeat the pre emptor. Ganga Ram's defence, briefly put, was that by reason of a partition, the plaintiff had no right or at least one inferior to his own and that Rs. 500 was the true sale price. Issues were framed and 6th February 1911 was fixed for final hearing. On that date, the Partition Officer who had been called as a witness by Ganga Ram (vendee) was, by consent of parties, examined first of all to enable him to get away at once to his duties. The case was adjourned to February 7th.
2. On this date, the Court examined one of the plaintiff's witnesses only and adjourned the case to February 9 th.
3. On February 9th, the plaintiff's case was closed and the case adjourned to February 10th. On that date, the defendant asked for an adjournment. By reason of the Court having heard the case piecemeal, instead of going on with it and finishing it right off, as it ought to have done, and also because plague had broken out in the village, his witnesses who had been in attendance on February 6th had all gone home.
4. The case was adjourned to 24th February. On that date again the witnesses did not appear by reason of plague. The 6th March was fixed.
5. On this date, again the witnesses failed to appear and the 31st March was fixed on payment of Rs. 2 as costs. On this date, the defendant alone appeared but not his witnesses nor the plaintiff. The defendant stated that he and the latter had come to a compromise but as the plaintiff had not come to Court to file it, he asked for further time to produce his witnesses. The case was adjourned to April 12th.
6. On April 6th, the defendant applied for issue of process to his witnesses. On April 12th, the plaintiff alone appeared. The defendant and his witnesses were absent and the summonses issued had not been returned. The Munsif thereupon decided the case writing a decision on all the issues and stating in his judgment that he was deciding the case under Order XVII, Rule 3, as the defendant had ailed to produce his witnesses. He held that the burden of proving the true consideration was primarily on the defendant and as he had failed to produce any evidence on the point, he must decree the suit conditionally on the payment of Rs. 50.
7. From this decree, the defendant did not appeal but on May 2nd, 1911, he applied to the Munsif under Order IX, Rule 13, to set aside the ex parte decree.
8. The Munsif held that as he had acted under Order XVII, Rule 3, the proper remedy for the defendant was to appeal against the decree and, therefore, ho had no power to set aside the ex parte decree under Order IX, Rule 13. The defendant appealed against this order to the District Judge who took the same view, hence the present application for revision based on the ground that the Munsif had refused to exercise the jurisdiction which he had to entertain and decide on its merits the application under Order IX, Rule 13. It is urged with considerable force that on the defendant's non-appearance at the hearing of the suit on April 12th, 1911, the Court had power, only nnder Order XVII, Rule 2 and not under Order XVII, Rule 3, to pass an ex parte decree; that Rules 2 and 3 of this Order are mutually exclusive and that if the contingency contemplated in Rule 2 occurs, Rule 3 cannot come into operation even though the party concerned may also have failed to perform the necessary act for which time has been allowed. I have been warmly pressed to adopt the view taken in Maharaja of Vizianagram v. Lingam Krishna Bhupati 12 M.L.J. 473 and certain other cases. The point is one which has been considered in this Court and whatever my own inclinations may be, I cannot ignore the fact that in the case reported as Naganada Iyer v. Krishnamurti Aiyar 34 M. 97 : 6 Ind. Cas. 233 : (1910) M.W.N. 213 : 8 M.L.T. 60 : 20 M.L.J. 535 the opposite opinion was expressed. In this Court, the opposite opinion was also expressed in the case of Badam v. Nathu Singh 25 A. 194. The decision in Gaura Bibi v. Ghasityia 8 A.L.J. 1265 : 12 Ind. Cas. 603 is also against the present appellant. This was the case of a plaintiff failing and the present is the case of a defendant but the same principle applies. It was held that the applicant (who came up to the Court on revision) ought to have appealed against the Munsif's decree and no application in revision would lie. Whatever my opinion may be on the question, I am bound by this ruling and must hold that no revision is maintainable in the present case.
9. The application is dismissed with costs.