Skip to content


Ajodhya Pershad and ors. Vs. Musammat Chhabila Koer - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in29Ind.Cas.1004
AppellantAjodhya Pershad and ors.
RespondentMusammat Chhabila Koer
Cases ReferredGopala Chetti v. Subbier
Excerpt:
civil procedure code (act v of 1908), section 115, order ix, rule 9 - ex parte decree, order setting aside--revision, maintainability of. - - there is certainly force in the contention that the words 'affecting the decision of the case' are perfectly general and that their sense should not be limited by judicial decisions. the matter is one in which it would be well for the parties to reconsider their position;.....decree cannot be challenged in an appeal from, such decree as may eventually be passed in the suit. if this view is correct, the only remedy open to a litigant aggrieved by such an order is by way of application in revision.3. however this may be, on ihe facts of the particular case before me, i am not disposed to interfere. the power-of-attorney in favour of eameshar which was produced before the learned munsif on the 27th february 1915 either had retrospective effect, or it had not. if it had, there is no force in this application. if it had not, then the plaint itself was never properly before the munsif, for it was presented through a pleader appointed by this very rameshar. the matter is one in which it would be well for the parties to reconsider their position; but.....
Judgment:

Piggott, J.

1. This is an application in revision by the defendants in a certain suit against an order passed by the Munsif of Fatehpur, whereby a previous order of the same Court dismissing the plaintiff's suit for non-appearance was set aside. The suit had originally been filed in the Court of the Subordinate Judge, but the plaint was returned with directions that it be filed in the Court of the Munsif of Fatehpur. It was dismissed for default of plaintiff's appearance on the 11th January 1915. An application for re-hearing was made on the 27th January 1915. A notice having gone to the defendants the question came up for orders on the 20th February 1915. It was then pointed out to the Munsif that the plaintiff's application for re-admission of his suit had been presented by one Rameshar under a special power-of-attorney. That power-of-attorney being examined, it appeared that it was so worded as to authorize Rameshar to present the plaint and to do all acts that might be necessary for the prosecution of the suit in the Court of the Subordinate Judge, but that it did not authorize Rameshar to take any action on behalf of the plaintiff in the Court of the Munsif of Fatehpur. The learned Munsif thereupon gave the plaintiff a week's time to put in a fresh power-of-attorney in favour of the same Remeshar. This was done on the 27th February 1915, and the plaintiff's application for the re-admission of his suit was thereupon allowed on the merits.

2. With reference to the present application, an objection is taken on behalf of the plaintiff-opposite party to the effect that an application fcr revision will not lie against an order re-admitting a suit which has been dismissed for default. The reason suggested is that, if the order re-admitting the suit is an improper one, it can be challenged in appeal under the provisions of Section 105 of the Civil Procedure Code. In a case which recently came before me as a single Judge I accepted this contention. The matter was subsequently argued before a Bench of two Judges of which I was a member. The case was that of Janki Prasad v. Parmeswar Din Pandey 29 Ind. Cas. 975 : 13 A.L.J. 482. The question whether an application for revision was admissible at all against an order setting aside an ex parte decree is not discussed in the reported judgment. As a matter of fact it was raised, but we passed it over on the authority of Tasadduq Husain v. Hayat-un-nissa 25 A. 280 : A.W.N. (1903) 39. This followed a decision of the Calcutta High Court Chintamony Dassi v. Raghoonath Sahoo 22 C. 981 and a previous case of this Court Gulab Kunwar v. Thakur Das 24 A. 464 : A.W.N. (1902) 136. There is, however, a more recent reported case of this Court in the opposite sense, riz. Nand Ram v. Bhopal Singh 16 Ind. Cas. 1 : 34 A. 592 : 10 A.L.J. 130. That was a two Judges' case, but it would not appear from the report that the second Judge was of opinion that the application for revision was not maintainable. The learned Judge who took that view does not refer to the older decisions of this Court which I have already discussed, but supports himself principally by the case of Gopala Chetti v. Subbier 26 M. 604 : 13 M.L.J. 308. If I were to decide the point independently of alt authorities, I should, as at present advised, be much inclined to adhere to the view I first took when sitting as a single Judge. Section 105 of the Code of Civil Procedure allows any order affecting, the decision of the case to be challenged in an appeal from the final decree. There is certainly force in the contention that the words 'affecting the decision of the case' are perfectly general and that their sense should not be limited by judicial decisions. The preponderance of authority in this Court, however, seems to be in favour of the view that the propriety of an order setting aside an ex parte decree cannot be challenged in an appeal from, such decree as may eventually be passed in the suit. If this view is correct, the only remedy open to a litigant aggrieved by such an order is by way of application in revision.

3. However this may be, on ihe facts of the particular case before me, I am not disposed to interfere. The power-of-attorney in favour of Eameshar which was produced before the learned Munsif on the 27th February 1915 either had retrospective effect, or it had not. If it had, there is no force in this application. If it had not, then the plaint itself was never properly before the Munsif, for it was presented through a Pleader appointed by this very Rameshar. The matter is one in which it would be well for the parties to reconsider their position; but undoubtedly, if the learned Munsif has taken cognizance of a plaint which had never teen legally presented in his Court, this is a point which it is still open to the defendants to raise. I decline to interfere at this stage and reject the application.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //