R.N. Misra, J.
1. This appeal is directed against an order passed under Order 9, Rule 13, C.P.C. by the learned Subordinate Judge of Puri refusing to set aside an ex parte final decree.
2. On 29-10-68, the Commissioner submitted his report. The case was posted to 21-11-68 for objections. The appellant who was the defendant in the court below did not file his objection that day and the learned Trial Judge accepted the Commissioner's report and directed the final decree to be prepared. When an application for reopening the matter was made by setting aside the order dated 21-11-68 on the ground that the appellant was ill at the material point of time the learned Trial Judge accepted the allegation of his illness, but refused to reopen the matter on the basis that to a final decree proceeding Order 9, Rule 13, C.P.C. had no application. For his conclusion he relied upon a decision in AIR 1949 Pat 68 (Surendra Kumar Singh v. Mukund Lal Sahu) and another reported in AIR 1961 Cal 534 (Suresh Chandra v. United Bank of India Ltd.). The learned Subordinate Judge obviously lost sight of a decision of this Court directly dealing with the matter in ILR (1964) Cut 45 = (AIR 1964 Orissa 55) (Swaranamoyee v. Debendranath). One of the questions posed in this case was 'Whether Order 9, Rule 13, C.P.C. is applicable to setting aside the ex parte final decree?' In paragraph 6, his Lordship, the present Chief Justice, answered the question thus :
'It cannot, however, be contended that due to non-service the final decree is null and void. But for setting aside such a decree the provisions of Order 9, Rule 13, Civil Procedure Code are applicable.'
The learned Subordinate Judge should not have lost sight of such a direct decision on the point of this Court and should not have preferred to adopt a contrary view expressed in the decisions of some other courts which were specifically considered in the aforesaid decision and not relied upon.
3. In this view of the legal position and on the finding recorded by the learned Trial Judge that there was sufficient cause for the absence of the appellant on the relevant date I would allow the appeal, vacate the ex parte decision and direct that the matter shall be reheard. But in view of the fact that the respondent is being called upon to contest the proceeding again there must be an order for costs. I would accordingly call upon the appellant to pay a sum of Rs. 32/-to Mr. S. C. Mohapatra for the respondent within a month from today. Failing payment of the costs as directed this appeal shall stand dismissed without further reference to the Court. In case the amount is certified to have been paid within time the records shall be transmitted to the trial Court for giving effect to the decision.