1. Under Section 588(9) of the Code there is an appeal against an order rejecting an application under Section 108, whilst Section 540 provides that an appeal may lie from an original decree passed ex-parte. The word may is used in the part of the section which gives a right of appeal from an ex-parte decree, whilst the word shall occurs in the earlier portion of the section. It is, no doubt, a reasonable view that the appeal given by Section 540 in the case of ex-parte decrees is not an appeal in all cases as of right, but an appeal when a party appeals on the merits of the case and not upon the ground that the summons was not duly served or that the defendant was prevented by sufficient cause from appearing when the suit was called on in other words, that a party who desires to upset an exparte decree on the ground that the decree ought not to have been made ex-parte, must first apply under Section 108, and if an order is made against him, that he has no right of appeal against the decree under the general enactment; contained in Section 540, but only a right appeal against the order under the special enactment contained in Section 588(9).
2. This appears, to have been the view taken by the t Calcutta High Court in Jonardan Dobey v. Ramdhone Singh I.L.R.(1896) I.L.R. 29 C. 733. Their Lordships observe, 'When a decree is passed ex-parte against a defendant a remedy by appeal is now always open to him by Section 540 of the Code of Civil Procedure as amended by Act VII of 1888. But such a remedy can be efficacious only in those cases, and their number must be small, in which the ex-parte decree is either wrong in law on the face of the proceeding or is based upon evidence so weak that even though unrebutted it is insufficient to sustain the decree. In the great majority of cases in which a defendant having a good defence has had an ex-parte decree passed against him, the disadvantage he labours under is that he has not been able to substantiate his defence by evidence before the Court. Upon the record, as it stands, the ex-parte decree may be wholly unassailable, but, if the defendant has an opportunity (which he was prevented from having owing to some sufficient cause) of placing on the record evidence which he could have adduced to substantiate his defence, no such decree should have been passed. The remedy in such a case cannot be by way of appeal which must ordinarily proceed upon the record as it stands. The proper remedy must be the one provided by Section 108 of the Code of Civil Procedure.'
3. If I could adopt this view I should have no difficulty in holding that in an appeal against an order under Section 588(9) the appellate Court with a view to making its own order effective can send back the case to be disposed of on the merits (such an order, as it seems to me, is not an order of remand within the meaning of the words as used in Sections 562 and 564); but that when the appeal is on the merits under Section 540 an order of remand could not be made. However, the observations of the Calcutta High Court as regards this point are merely obiter and the seem to me to involve the reading into the Code of a great deal which the legislature might have said but did not say. I think it must be taken that the legislature by accident or design has given a right of appeal, apart from the merits, against an order on the ground that the defendant was not in default in failing to appear and against an ex-parte decree, also apart from the merits, upon the same grounds. There is a power to remand a case when the appellate court reverses an order refusing to set aside an ex-parte decree and it seems to me anomalous to hold that there is no such power when the appellate court allows an appeal against a decree upon the ground that there ought not to have been an ex-parte decree against the defendant. So far as convenience is concerned, it is certainly much more convenient that a case should go back than that the appellate court should deal with the case under Section 566 or b. 568. I do not overlook the fact that to hold, that, in such a case, an order of remand can be made is contrary to the view taken by Sir Charles Sargent in Parvatishankar Durgashankar v. Bai Navat I.L.R. (1892) B. 733, by the two learned judges by whom the order of reference m the present case was made, and by myself and O'Farrell, J., in Caussanel v. Soures I.L.R(1899) M. 260. On further consideration, however, and. after hearing the point fully argued, I am of opinion that the better view is that taken by this Court in Perumbra Nayar v. Subrahmanian Pattar I.L.R(1899) M. 445 and by the Allahabad High Court in Habib Bakhsh v. Baldeo Prasad I.L.R(1901) A. 167.
4. I would answer the question which has been referred to us in the affirmative.
Subrahmania Aiyar, J.
5. I concur.
6. I concur.