1. This matter has come before this Bench on a reference by a learned Single Judge. He has not formulated the question to be answered by the Bench. We shall, therefore, briefly give the circumstances in which the reference has been made, and then formulate the question arising therefrom.
2. A suit was brought by the plaintiffs who are opposite parties in this revision against three defendants. One of whom was Mangal Singh. Summonses were issued a number of times ag there was difficulty in service. One of the dates fixed was 16th of July, 1951. Summons was issued to Mangalsingh defendant who is the applicant in this revision for that date. The process server reported that Mangalsingh had refused to accept the summons. Therefore, the Court passed an order on the 16th of July, 1951, that there was sufficient service on Mangalsingh and that the proceedings should go on ex parte against him. After further adjournment, the case came to be fixed for the 8th October, 1952. On this date, Mangalsingh appeared and filed an application supported by an affidavit under Order 9, Rule 7. C. P. C. for setting aside the ex parte order. The matter was enquired into, and on the 30th of January, 1950, the trial Court passed an order dismissing the application under Order 9, Rule 7. The present revision application is against this order.
3. When the matter came up for hearing before the learned Single Judge, a preliminary objection was raised on behalf of the opposite party to the effect that the revision was incompetent in view of the decision of this Court in Swarup Narain v. Gopi Nath, ILR (1953) 3 Raj 483: (AIR 1953 Raj 137) (FB) (A). In that case, it was held that where it was open to a party to raise a ground of appeal in the High Court under Section 105 C. P. C. from the final decree or order with respect to any order which had been passed during the pendency of the case, an appeal in that case lay to the High Court within the meaning of the words 'in which no appeal lies thereto' appearing in Section 115 C. P. C., and a revision would not be competent against such an order passed during the pendency of a suit or proceeding.
The contention of the opposite party was that the order dismissing the application under Order 9, Rule 7 C. P. C. could be challenged in second appeal which would eventually lie to the High Court by way of a ground under Section 105 C. P. C., and therefore the revision was incompetent. The question, therefore, may be formulated thus :
'Where an application under Order IX. Rule 7 C P, C. has been dismissed, is it open to the defendant to come in revision from the dismissal, or is it possible for him to take a ground under Section 105 C, P. C. in the appeal which would finally come to the High Court from the decree passed in the suit?'
The learned Single Judge has made this reference because of the doubt he entertains about the correctness Of Some Single Judge decisions of this Court, in view of the decisions of some other High Courts.
4. We may refer briefly to the decisions of this Court at the outset.
5. The first case is Berisal Singh v. Prem-chand ILR (1953) 3 Raj 179 (B). That was a second appeal before this Court in a suit for possession. In that case. Bapna J. held that if the defendant did not apply for setting aside the ex carte decree, and merely filed an appeal against the decision given against him, he could not ask for a remand on the ground that the summons was not duly served, and that his grounds of appeal would be limited to the question off law and facts which were already on the record. This case does not deal exactly with the point at issue before us; but it is urged that we can deduce from the observation in this case that it is not open to a party to attack an ex parte decree on the ground that the summons was not duly served if he did not proceed in the manner provided by Order IX, Rule 13 C. P. C., or the corresponding provision in the Order relating to appeals, namely Order XLI, Rule 21 C. P. C.
6. The second case, which was decided by one of us, but which is not reported, is Hazarimal v. Punamchand, decided on 12-11-1954 (Raj) (C) In that case, the defendant had applied under Order IX, Rule 7 C. P. C., and his application was dismissed. Thereafter, he came in revision to the High Court. A preliminary objection was raised that the revision could not be, entertained in view of the decision in Swarup Narain's case (A). But that objection was overruled on the ground that the defendant had been shut out from appearing in Court, and filing his defence, and that it would not be possible for him to raise that point in second appeal when he came to the High Court. No cases were, however cited in support of that view.
7. The matter has now been fully argued before us, and we have given our earnest consideration to the question which we have formulated. Before we take up the actual point, we should like to point that the Privy Council and the High Courts have always taken the view that where two remedies are provided one of which is from an interlocutory order and the other from the decree that is passed in a suit -- it is not necessary for a party to appeal from the interlocutory order even if an appeal is provided, and that it igj sufficient for him to appeal from the decree and in such appeal he can challenge the correctness of the interlocutory order even though he had not filed any appeal from it Reference in this connection may be made to Maharaja Maheshwar Sing v. Bengal Government, 7 Moo Ind App 283 (PC) (D), where it was held as follows :
'There is no Regulation which requires a party to appeal from interlocutory decrees; and in an appeal to the Judicial Committee from a decree adjudicating upon the whole suit, the propriety of interlocutory decrees made in the course of the suit, though acquiesced in and submitted to at the time, may be called in question.'
It was because of this decision of the Privy Council that sub-section (2) was introduced in Section 105 with respect to appealable orders of remand precluding a party from challenging the correctness of the remand order if he did not appeal from it at the proper time.
8. In Sheo Nath Singh v. Ram Din Singh ILR 18 All 19 (E) a Full Bench of the Allahabad High Court held that,
'An order made under the Code of Civil Procedure, from which an appeal is given under Section 588 of that Code, may be questioned under Section 591 in an appeal from the decree in the suit if the ground of objection is stated in the memorandum of appeal although no appeal from such order has been preferred under Section 588.'
9. Again in Mohammad Najibnzzaman v. Sheo Shankar AIR 1943 Oudh 288 (P) it was held that it was not imperative upon the suitor to appeal from every interlocutory order by which he might conceive himself aggrieved under the penalty, if he did not so do, of forfeiting for ever the benefit of the consideration of the appellate Court.
10. The general principle, therefore, seems to be that the mere fact that an appeal is provided from an interlocutory order would not prevent a party, who does not appeal from the interlocutory order, to challenge the correctness of that order in the appeal which he may finally prefer from the decree passed in the suit.
11. Let us now turn to the actual question before us keeping this principle in view. Order IX, Rule 7 provides that a defendant may apply for setting aside an ex parte order, provided he appears and assigns good cause for his previous non-appearance. What is to happen however when the Court refuses to set aside the ex parte order, and rejects the application under Order IX, Rule 7 C. P. C.? Can the defendant raise the point that his application under Order IX, Rule 7 was wrongly rejected in an appeal that he may file from the decree passed against him.
The answer to this question is to our mind clear, A ground can always be raised under Section 105 C. P. C. challenging any order passed during the pendency of a suit provided the order affects the decision of the case on the merits. Now an order which shuts out a defendant does seem to us to affect the decision of the case on the merits, for the defendant is thereby prevented from filing a written statement, and from leading evidence to contest the suit brought against him. On further consideration, we have come to the conclusion that the remark made in Hazarimal's case (C) that it would not be possible for the defendant to raise this point in second appeal was not justified:
12. So far therefore there is no difficulty, The defendant, whose application under Order IX, Rule 7 C. P. C. is dismissed, is certainly prejudiced, and if he files an appeal in case an ex parte decrees is passed against him, he can always challenge under Section 105 C. P. C. the correctness of the order shutting him out from appearing on the ground that the decision of the case was affected on the merits. But a complication is introduced in a case like this by the fact that after the rejection of an application under Order IX, Rule 7, an ex parte decree will follow against the defendant (we are assuming this, for if the suit is dismissed, the defendant would have no grievance at all). Now there is a specific provision in Order IX, Rule 13 for setting aside ex parte decrees.
Does the existence of such a specific provision affect in any way what we have said above about the right of the defendant to raise this point under Section 105 C. P. C. in appeal. An order under Order IX, Rule 13 is appealable, and as the proceeding under Order IX, Rule 13 is not during the pendency of the suit. a revision would also lie to the High Court, and the decision in Swarup Narain's case (A) would not stand in the way, as it refers only to orders during the pendency of the suit or proceeding in which they were made. An order under Order IX, Rule 13 is not during the pendency of the suit, and therefore a revision would lie from an order in appeal passed under Order 43, Rule 1 (d).
13. The question that is raised therefore is this :
Supposing an ex parte decree follows the rejection of an application under Order IX, Rule 7, can the defendant still challenge the order rejecting the application under Order IX, Rule 7 in view of the specific provisions of Order IX, Rule 13. It has been held that the rejection of an application under Order IX, Rule 7 is not bar to an application under Order IX, Rule 13 after the passing of an ex parte decree (See Ashruffunnissa v. Lehareaux ILR 8 Cal 272 (G); Sankaralinga Mudali v. Ratnasabhapati Mudali, ILR 21 Mad 324 (H), Kashirao v. Ramchandra; ILR 1948 Nag 252: (AIR 1948 Nag 362) (I).
This seems reasonable also for if it is possible to challenge an interlocutory order from which an appeal lies, but from which no appeal is preferred, when the appeal is preferred from the decree passed finally, it is difficult to see how a party should not be able to file an application under Order IX, Rule 13 simply because his application under Order IX, Rule 7 is dismissed. It may be mentioned that there is no appeal from the dismissal of an application under Order IX, Rule 7 C. P.C., though there is an appeal provided) from an order under Order IX, Rule 13 C. P. C.
Therefore, whatever may be the result of an application under Order IX, Rule 13 in the trial Court, the party would be able to take the order under Order IX. Rule 7 indirectly to the appellate Court, by, making an application under Order IX, Rule 13 C. P. C. Therefore, the defendant, whose application had been dismissed under Order IX, Rule 7, has two remedies open to him when an ex parte decree is passed against him. He may either apply under Order IX, Rule 13 in which case he can go in appeal, and thereafter in a proper case in revision to the High Court, or he may file an appeal from the ex parte decree without filing an application under Order IX Rule 13 C. P. C.
14. The question then arises whether in such an appeal from the decree, the defendant can dispute the correctness of the ex parte order on the grounds mentioned in Order IX, Rule 13 when he has not made an application under that Order. This matter has been considered by various High Courts, and it has been held that if no proceedings are taken under Order IX, Rule 13, there is nothing to prevent the defendant, who files an appeal against the ex parte decree, to challenge the correctness of the order on the grounds mentioned in Order IX, Rule 13 C P. C.
The principle in Maharaja Moheshwar Sing'a case, (D) has been extended to cover this case also even though the proceeding under Order IX, Rule 13 is not an interlocutory proceeding, and comes into existence only after the decree has been passed. The reasoning seems to be that if it was the intention of the legislature to bar such a point being raised when no action was taken under Order IX, Rule 13 a provision similar to sub-section (2) of Section 105 C. P. C. would have been made in the Code with reference to Order IX, Rule 13-proceedings.
15. In this connection we may refer to Je-thalal Girdhar v. Varajlal Bhaishanbar, AIR 1922 Bom 267 (J); B. Levvai Sahib v. Ammeenam-mal, AIR 1924 Mad 107 (K), Jnanendra Mohan Bhadhury v. Profullananda Goswami, AIR 1928 Cal 812 (L).
Though these: were cases of refusal of adjournment on insufficient grounds, the principle was laid down that even if no proceedings were taken under Order IX, Rule 13, it is open to challenge the order granting adjournment in the appeal from tine decree finally passed. Further In Ram Lal Gope v. Kali Prasad AIR 1929 Pat 609 (M) the following observations were made :
'It is open to a defendant to prefer an appeal against the ex parte decree as also to make an application under Order IX. Rule 13, and then to come up in appeal under Order 43, Rule 1, Clause (d). If he follows the special procedure of Order IX, he will have an opportunity of placing before the Court materials as to why he was precluded from being present when the case was tried ex parte. On the other hand, if he proceeds straight in an appeal against the original ex parte decree, he will be at some disadvantage because the Court of appeal will not be in possession of the materials which prevented his appearance. 'If, however, the defendant can show that there is an error, defect or irregularity, in an order rejecting his application for time which affects the decision of the case, there is no reason why he will not succeed even if he does not adopt the special procedure for the restoration of the suit and comes up in second, appeal so long as he can bring the case within the purview of Section 100.'
The High Courts seem, therefore, to take the view that even if no proceedings are taken under Order IX, Rule 13, the ex parte decree can be challenged on the grounds mentioned in Order IX, Rule 13 from an appeal from the decree itself. In such a case, the defendant may be at a disadvantage but that is a risk which he takes himself. If the decision in Berisal Singh's case (B) is understood in this sense namely that the party cannot ask for a remand in order to bring the materials on the record, and can only urge the points arising under Order IX, Rule 13 on the materials already on the record, it must be taken to be correct. But if it lays down further that the party cannot even, on the materials on the record, raise the points arising under Order IX, Rule 13, and ask for a decision of the appellate Court simply because it has not taken proceedings under Order IX, Rule 13, the decision would appear to that extent to be incorrect.
16. The conclusion, therefore, at which we arrive is this :
Where an application under Order IX, Rule 7 is dismissed and an ex parte decision follows the defendant has two remedies open to him. He may apply under Order IX, Rule 13 in which case he will have a right of appeal, and can come in revision to this Court. If he follows that, it stands to reason that he cannot subsequently be heard on the same point in the appeal from the decree itself.
But if instead of following the remedy provided in Order IX, Rule 13, he chooses to come straight in appeal from the ex parte decree, he cannot in view of Section 105(1), C.P.C. be precluded from challenging the correctness of the ex parte decree on any ground including the grounds covered by Order IX, Rule 13 provided that he asks the Court to decide on the materials already on the record, and that he is not entitled to ask for a remand to allow him to put more materials on the record to substantiate the grounds which he could have raised under Order IX, Rule 13. But it follows from this that a ground can be raised under Section 105 challenging the correctness of the order under Order IX, Rule 7 in the appeal that might finally come to this Court from the ex parte decree, that may follow the rejection of an application under Order IX, Rule 7.
17. Our answer, therefore, to the question formulated by us is :
Where an application under Order IX, Rule 7, C. P. C. has been dismissed, it is open to the defendant to take a ground under Section 105, C. P. C. in the appeal which would finally come to the High Court from the decree passed in the suit, and therefore a revision from an order dismissing an application under Order IX, Rule 7, C. P. C. does not lie in view of the decision in Swarup Narain's case (A).'
18. Let this answer be returned to the Bench concerned.