1. A decree was passed exparte agaipst one Nataraja Aiyar. He applied to set aside the exparte decree on the ground that the summons was not duly served and that he had sufficient cause for not appearing. Without finding on either of these questions, the Subordinate Judge set aside the exparte decree. Mr. Rama-chandra Aiyar supports the order on the ground that a Judge is, in a proper case, entitled to set aside an exparte decree for reasons other than those referred to in Order IX Rule 13. Before, however, deciding the case, we direct the Subordinate Judge to return findings on the following questions:
(1) Was the summons duly served ?
(2) Was the defendant prevented by any sufficient cause from appearing when the suit was called on for hearing?
2. The findings should be submitted within six weeks from this date after taking fresh evidence; and seven days will be allowed for filing objections.
3. In compliance with the order contained in the above judgment, the Lower Court submitted that the summons was duly served and that the defendant's pleader was prevented from appearing in court in time as the Judge had changed the usual practice of the court by taking up original work before small cause suits.
4. Mr. Srinivasa Iyengar contends that the pleader Mr. Narayanasami Iyer was instructed only to apply for an adjournment. He was not therefore a pleader duly instructed and able to answer all material questions to the suit, nor was the pleader accompanied by some person able to answer all such questions, see Order 5 Rule 2, Clauses (b) and (c). In these circumstances he argues that Mr. Narayanasami Iyer was not a pleader entitled to appear for the client in the case and that therefore there was no appearance. There is no finding by the Judge on these questions. We' therefore direct the Judge to return a finding on the questions.
(1) Whether the pleader was duly instructed and able to answer all material questions relating to the suit or,
(2) Whether he was accompanied by some person able to answer all such questions.
5. Fresh evidence will be taken. The finding should be submitted within a fortnight after the re-opening of the court and seven days will be allowed for filing objections.
6. In compliance with the order contained in the above Judgment the lower court submitted that the pleader was instructed only to apply for an adjournment and that he was neither able to answer all material questions nor accompanied by any person able to answer all questions.
Sankaran Nair, J.
7. The findings in this case are that the pleader Mr. Narayanaswami Aiyar was instructed only to apply for an adjournment and was not duly instructed and able to answer all material questions relating to the suit and that he was not accompanied by any person able to answer all such questions. I arri therefore of opinion that there was no appearance by the defendant either in person or by any pleader under Order V, Rule 1 of the Code of Civil Procedure and there was no sufficient reason for such non-appearance. The judge therefore had no power under Order IX, Rule 13 to set aside the exparte decree passed in the plaintiff's favour.
8. The question then remains for consideration whether the Judge had jurisdiction to set aside the decree for reasons other than those referred to in Order IX, Rule 13. Mr. Ramachandra Aiyar relies Upon the opinion expressed by Mr. Justice Bhashyam Aiyangar in Somayya v. Subbamma I.L.R. (1903) M. 599, concurred in by the learned Chief Justice in Gopala Row v. Maria Susaya Pillai I.L.R. (1909) M. 274, and upon the judgment in Muruga Chetty v. Rajasami : (1912)22MLJ284 . On the other side, the Judgment in Durga Baksh v. Mahabir (1911) 11 I.C. 344, Esmail Ebrahim v. Haji Jan : (1908)10BOMLR904 and Jogendra Kishore Boy Chowdry v. Brojendra Kishore Boy Chowdry I.L.R. (1896) C. 731, are relied upon. In Somayya v. Subbamma I.L.R. (1903) M. 599, it was not necessary to decide the question. But sitting as a single Judge, Mr. Bushyam Aiyangar observed that there was nothing in the Civil Procedure Code to show that an application for restoration could not be granted unless there was sufficient cause for nonappearance. He was of opinion that the Code only made it obligatory in cases of non-appearance to set aside the order of dismissal or decree passed exparte as the case may be, but that it did not exclude the inherent power of the court to restore the suit if sufficient reasons other than those in the Code existed. He said 'such a narrow construction of the sections would lead to most startling results and serious conesquences, which certainly could not have been intended by the legislature. A suit may be dismissed for default of appearance, because in the opinion of the Judge, the vakalat authorizing the vakil to appear for the absent party is invalid or has been exhausted, or the vakil is not entitled to practise in his Court or the person who appears as plaintiff or defendant in the case is not the real party but parsonates such party.' It appears to me, with all respect to the learned Judge that in all these cases the proper remedy is by way of appeal from the decree in the suit; and if the appellate court is satisfied that the lower court was wrong, the decree would be set aside and a re-trial ordered if the appellant insists on such a course. I can conceive of no cases where real injustice would be caused to a party which cannot be remedied either by appeal or by review. The learned Judge then stated that the court would consider the merits of the applicant's ' case to exercise its judicial discretion. In the case before him it was open to him to do so as the case had been fully tried; and the learned Judge eventually rejected the application on the ground that 'it is far from apparent that upon the merits the decree passed against him is unjust or contrary to law,' I am not prepared to agree with the view that the merits of the case form an element in the determination of the question whether an application for restoration should be granted or not. In cases like the one before us, it will be necessary to try the case fully before the application is disposed of. The learned Chief Justice expressed his concurrence with the view in Gopala Row v. Maria Susaya Pillai I.L.R. (1906) M. 274. There also the question did not arise for decision and he expressly stated that he did not base his judgment on that ground. In Maruga Chetty v. Rajasami : (1912)22MLJ284 Sundara Aiyar, J. followed the opinion expressed by Bhashyam Aiyangar, J. and the learned Chief Jutsice. In the case before him, the appellant failed to appear and the appeal was dismissed on account of the appellant's default. He relied upon the difference between Section 556 of the Code of Civil Procedure, according to which the court was byunl to dismiss an appeal if the appellant did not attend, and Order 41, Rule 17 under which the court may make an order that the appeal be dismissed. There is no such difference in the case of original suits. See Section 100 Clause (a) of the Act of 1882 and Order IX, Rule 6, clause 7.of the Code of 1908.
9. Where the Code prescribes a certain procedure to be followed in a certain event, I am of opinion that it is not open to the courts to go beyond the Code. A provision that a decree shall be set aside for a reason stated does not imply that it may be set aside for other reasons if the court thinks it fit to do so. If it had been the intention of the legislature to leave such questions to judicial discretion, it would have said so. A power to deprive a person of the benefits of a decree in his favour is not to be implied. Nothing can more strongly illustrate the danger of going outside the Code in such matters than the case before us. In this case the plaintiff has obtained a decree against the defendant for a very large sum of money, over Rs. 30,000, and it was stated before us that the real reason why this application for restoration is so strongly opposed is that if the decree was set aside the petitioner would be deprived of the fruits of his decree that might eventually be passed in his favour because all the properties of the defendant had been already attached by jvarious decree-holders amongst whom they would be rateably distributed. In the case in Muruga Chetty v. Rajasami : (1912)22MLJ284 Mr. Justice Sundara Aiyar, assumes that the result of granting an application for restoration would simply be to restore the parties to the position they occupied before the dismissal. This might be so in the case of appeal or second appeal. The case is different in the case of original suits. The party might be deprived of the fruits of his decree if the petitioner's allegations before us are true. I am not therefore prepared to hold that, when a decree is passed against the defendant exparte, the defendant is entitled to have it restored upon any ground other than that which is recognized by the Civil Procedure Code.
10. For these reasons I would set aside the order granting the application for restoration and dismiss the same with costs throughout.
Abiur Rahim, J.
11. I agree.