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Chandar Sahai Vs. Durga Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1924All682; (1924)ILR46All538
AppellantChandar Sahai
RespondentDurga Prasad and anr.
Excerpt:
civil procedure code, section 141, order ix, rule 13 - application for restoration of application to set aside an ex parte decree---application dismissed--appeal. - .....in an application under order ix, rule 13, of the code of civil procedure for setting aside the ex parte decree. he filed an affidavit in support of the application, explaining why he was not able to appear on the former date and why he appeared late on that date. the court fixed the 14th of january, 1922, for the disposal of this application. on that date the defendant again did not appear and this application was dismissed for default. after this, on the 2lst of january, 1922, the defendant put in a second application, purporting to be an application under order ix, rule 13, in which a mention was made of the circumstances under which he was not present when his previous application was dismissed for default. an affidavit was also filed showing that he was ill on the 14th of january,.....
Judgment:

Sulaiman, J.

1. This civil revision arises under the following circumstances:

A civil suit was instituted by the plaintiff in the court of the Munsif at Kasganj. The summons was served personally on the defendant and the 8th of November, 1921, was fixed for the settlement of issues. On that date, however, the defendant did not appear. The court then passed an order that the case should be proceeded with ex parte and fixed the 28th of November for final hearing. On the 28th of November, 1921, the defendant again did not appear and the suit was decreed ex parte. The defendant, however, did appear later on in the court and put in an application under Order IX, Rule 13, of the Code of Civil Procedure for setting aside the ex parte decree. He filed an affidavit in support of the application, explaining why he was not able to appear on the former date and why he appeared late on that date. The court fixed the 14th of January, 1922, for the disposal of this application. On that date the defendant again did not appear and this application was dismissed for default. After this, on the 2lst of January, 1922, the defendant put in a second application, purporting to be an application under Order IX, Rule 13, in which a mention was made of the circumstances under which he was not present when his previous application was dismissed for default. An affidavit was also filed showing that he was ill on the 14th of January, 1922. The learned Munsif held that this second application was a substantial application under Order IX, Rule 13, and was in fact a fresh application under that rule, but as it was filed more than 30 days after the ex parte decree, it could not be entertained. He accordingly 'dismissed the application under an order dated the 13th of July, 1922.

2. The defendant went up on appeal from this last mentioned order to the court of the District Judge. The learned District Judge has allowed the appeal and set aside the order dismissing the application of the 21st of January, 1922, and not the ex parte decree of the 28th of November, 1921, and has directed the court of first instance 'to dispose of the application of the 21st of January, 1922, on the merits, treating it as one for restoration of the application of the 28th of November, 1921.'

3. I am of opinion that the order of the learned District Judge cannot be maintained.

4. The application of the 21st of January, 1922, filed by the defendant may be treated either (1) as an application for restoration of the application of the 28th of November, 1921, which had been filed for setting aside the ex parte decree, or (2) as an application in itself one for setting aside the ex parte decree of the 28th of November, 1921.

5. If the application of the 21st of January, 1922, was for restoration of the application of the 28th of November, 1921, and not an application for setting aside the ex parte decree, then, even though the court of first instance had jurisdiction to entertain this sort of application, if it did not feel inclined to grant the application, no appeal from its order dismissing the second application lay to the lower appellate court. An appeal lies from an order refusing to set aside an ex parte decree; but under the Code of Civil Procedure no appeal is provided for from an order dismissing an application which is for restoration of an application for setting aside an ex parte decree. Nor can a right of appeal be claimed by virtue of Section 141 of the Code of Civil Procedure, when Order XLIII of the Code makes no provision for such an appeal. In this view of the matter, therefore, the lower appellate court had no jurisdiction to hear the appeal at all.

6. On the other hand, if the application of the 21st of January, 1922, was an application for setting aside an ex parte decree of the 28th of November, 1921, and the court of first instance dismissed it, an appeal would lie to the lower appellate court, though it is manifest that that application itself was barred by time and was incompetent on account of the dismissal of the previous application. Nevertheless, if the learned District Judge, in spite of the application dated the 21st of January, 1922, having been barred by time or being barred by the dismissal, of the previous application, had allowed the appeal and set aside the ex parte decree itself, it might have been difficult for this Court to interfere in revision on the ground of an error of law committed by the lower appellate court.

7. The learned District Judge, however, has not set aside the ex parte decree at all, but has entertained the appeal as having been preferred from the order dismissing the application of the 21st of January, 1922, treating it as an application for restoration of the previous application of the 28th of November, 1921. He has simply set aside the order of the 13th of July, 1922, and sent the case back to the court of first instance with a direction to dispose of the application of the 21st of January, 1922, treating it, not as an application for setting aside the ex parte decree, but simply as an application for restoration of the application of the 28th of November, 1921. This order is obviously wholly irregular. I have already said that no appeal is provided for from an order dismissing an application for the restoration of an application for setting aside an ex parte decree. The learned Judge, therefore, could not simply have set aside the order of the 13th of July, 1922, and asked the court of first instance to proceed again with the application of the 21st of January, 1922. If he really wanted to entertain the appeal from an order refusing to set aside an ex parte decree, he might himself have gone into the question and decided whether the ex parte, decree should or should not be set aside, and this he has not done. He has even not decided whether the application of the 21st of January, 1922, should or should not be granted. He has left this latter question still open. The learned Judge has himself taken the view that the second application should in justice be taken to be ah application for restoration of the previous application. He should then not have entertained an appeal from its dismissal.

8. The defendant in this case has entirely misconceived his remedy. If his second application was an application for restoration of the previous application for setting aside the ex parte decree and an adverse order was passed against him, he might have come up straight to the High Court in revision, if he could bring his case within Section 115 of the Code of Civil Procedure, but in no case could he have gone to the lower appellate court in appeal.

9. I accordingly allow this application, set aside the order of the lower appellate court and restore the order of the court of first instance with costs in all courts, leaving it open to the defendant, to have recourse to whatever other remedy he may be advised to take, if he considers himself aggrieved by the first court's order.


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