1. This is an appeal against an order refusing to set aside an ex parte decree. The decree itself was passed in an application filed under Section 20 of Schedule II of the Code of Civil Procedure and registered as a suit, a suit.
2. The case originally stood posted for the 23rd July, 1924. It was then adjourned to 30th July. On that date the defendant was absent and the Court proceeded ex parte and passed a decree in accordance with the award. Afterwards, on the 11th August, 1924, the defendant filed the present application for. setting aside the ex parte decree. The Subordinate Judge of Cuddalore refused to set aside the ex parte decree by the order dated 22nd September. The defendant filed the present appeal.
3. The respondent's vakil takes the preliminary objection that no appeal lies. The appellant meets this contention in two ways. Firstly, he relies on Nihal Singh v. Khushhal Singh I.L.R. (1916) All. 297 and argues that this is a case open to appeal within the meaning of those words as used in Order 43, Rule 1(d), whereas the respondent contends that this is not a case open to appeal, because when a decree is passed in a case of this kind no appeal lies except in so far as it is in excess of the award and in this particular case the decree that was passed was not in excess of the award. He, therefore, contends that this is not a case open to appeal. In Nihal Singh v. Khushhal Singh (I.L.R. 1916) All. 297, which is a decision of Piggott and Walsh, JJ., Piggott, J., says that apart from the decree a case under Section 20 of Schedule II may be regarded as a case open to appeal, because when an order is made filing or refusing to file the award, an appeal lies under Section 104(1)(f) of the Code of Civil Procedure. No doubt Piggott, J., gives a further reason for holding that the case is one open to appeal, namely, that though an appeal against a decree may not lie in certain circumstances, it will lie in certain other circumstances and therefore, the case may be regarded as one open to appeal. So far as the ground of Piggott, J., is concerned, it is in conflict with the reasoning of Das and Ross, JJ., in Raghunath Rai Dilsuk Rai v. Bridhi Chan Sri Lal I.L.R. (1924) Pat. 839 but the actual case before the Patna High Court is not one arising under Section 20 of Schedule II. It was a case of reference through Court followed by an award. Section 104(1)(f) does not apply to such a case. This fact is enough to distinguish the two cases and the case in Raghunath Rai Dilsuk Rai v. Bridhi Chan Sri Lal I.L.R. (1924) Pat. 839 does not stand in the way of the appellant in the case before us. Though I am personally inclined to agree with the second ground of Piggott, J., also, it is unnecessary to pursue the matter further. The first ground is enough for us to hold that the present appeal lies.
4. It cannot be said that the words 'case open to appeal' should be necessarily construed only with reference to the decree and to no other order. The appellant also argues that, even if the above argument is not tenable, the appellant could have filed an appeal against the order filing the award. In the present case the order filing the award and the order passing a decree were both contained in the same order dated the 30th July. The decision in Sitaramaiya v. Pichaiya : (1911)21MLJ1005 is an authority for holding that the two parts can be separated and though there may be no appeal against the decree itself, an appeal can be filed against the earlier portion of the order which directs that the award should be filed. It is true that the present appeal is not filed in the form of an appeal against the order filing the award, but having regard to the fact that from 11th August, 1924 up to this date, the appellant has been pursuing bona fide another proceeding for obtaining the same relief, if it is necessary for us to take this course of action, 'we will be inclined to excuse the delay and allow the appellant to convert the present appeal into an appeal against the order filing the award and proceed with the case.
5. Another argument of the learned vakil for the respondent requires to be noticed. He contends that if we are inclined to hold that the appeal lies and proceed to set aside the ex parte decree, there will be an anomalous result. He says that while the decree is set aside the order filing the award remains, but if the order filing the award remains valid, the only course open to the Court is to follow it up by a decree and therefore it is meaningless to set aside the decree while leaving the order filing the award in force. The reply to this is that there is really no such anomaly as apprehended by the learned vakil for the respondent. If we interfere in the case, we will interfere as will appear lower clown, on the ground that the appellant has shown sufficient reason for his absence on the 30th and all proceedings subsequent to the stage of his non-appearance oh that day do not bind him. Therefore not only the decree but also the order filing the award are not binding on him. When we set aside the ex parte decree, we really set aside all proceedings from the stage of his non-appearance. Therefore, there is no such anomaly as the learned vakil for the respondent supposes.
6. Another contention of the respondent's vakil is that Order 43, Rule 1(d) does not help the appellant because Order 9, Rule 13 applies only to decrees in suits. He contends that though there is a decree here, it is not a decree in a suit. Though Section 20 of Schedule II of the Code of Civil Procedure directs that the application should be numbered as a suit, he contends that still it is not a suit. For this contention he relies on Rajmal Girdharlal v. Maruti Shivram I.L.R. (1920) B. 329. In that case it was held that for the purpose of Section 11 of the Code of Civil Procedure, an order refusing to file an award is not res judicata in a later regular suit on the ground that the earlier proceedings was not a suit. It is unnecessary to consider that decision now. That is a decision for the purpose of Section 11 only. We are satisfied that for the purpose of Order 9, Rule 13, this is a suit and there is a decree. Order 9, Rule 13 applies. We overrule the preliminary objection and hold that an appeal lies.
7. Coming to the merits, the facts are very simple. There were floods in the Cuddalore and Tanjore Districts in the month of July, 1924. On the 23rd July, the defendant went to Mayavaram, and through his vakil there, who was acting as the legal adviser in connection with this matter, sent a telegram to the Subordinate Judge, Cuddalore, saying that he was unable to attend Court and praying for an adjournment of the suit. The suit was adjourned to 30th July but the fact was never communicated to the party. The party wrote a letter to his vakil at Cuddalore along with the telegram to the Court, but he never got any reply. His statement in the affidavit that he never knew to what date the suit was adjourned must be accepted. It may be that if he took more diligent steps than those he has actually taken it was possible for him to ascertain the exact date to which the case was adjourned but the facts of the case are so peculiar that we will not be justified in looking forward for such extraordinary diligence. We think that the facts of the case are such that the Subordinate Judge might well have set aside the ex parte decree and restored the suit. We therefore allow this appeal and set aside the order of the Subordinate Judge refusing to set aside the ex parte decree. I have already observed that this order involves setting aside not only the ex parte decree but the order filing the award - in fact all the proceedings that took place after the non-appearance of the defendant. The costs in the Court below will abide the result and in the appeal the respondent will pay the appellant's costs.