1. The facts out of which tins application arises are as follows: The petitioner obtained a mortgage-decree on the 20th August 1908 on contest against one Behari and ex parts against defendant No. 2, Ramdham, who is not the opposite party, Behari appealed to the District Judge but his appeal was dismissed. The decree-holder then applied to have the decree made absolute and after securing an order to that effect, he took out execution proceedings and caused the mortgaged property to be sold. He purchased it himself and was put in possession on the 15th September 1914. On the 30th November 1914, Ramdhani, against whom, the decree had been passed ex parte, submitted an application under Order IX, Rule 13, Civil Procedure Code, asking to have the ex parte decree set aside. On the 30th of January, some sort of agreement was arrived at between the parties to the effect that Ramdhani should pay into Court the decretal amount: and on that being done, the decree-holder should relinquish his claim to the property. Ramdhani deposited in Court the decretal amount as set out in the original decree which had been passed some six or seven years earlier. The decree-holder objected to this deposit and on the 10th March, the learned Munsif heard Pleaders on both sides and recorded the following order: 'In this view of the case the deposit made should be considered to be good. The rehearing petition should be granted after setting aside the decree. After this the necessary orders will be passed on the applicant moving the Court.' The decree-holder obtained a Rule from this Court en the opposite party to show cause why the order just mentioned should not be set aside on the grounds stated in the petition.
2. It has been urged before us on behalf of the decree-holder, firstly, that the Munsif had no jurisdiction to entertain an. application under Order IX, Rule 13; secondly, that he acted with material irregularity in not requiring from the judgment-debtor compliance with the requisition of Order IX, Rule 13, Civil Procedure Code; and thirdly, that the judgment-debtor's application was barred by limitation.
3. With regard to the first contention, the argument on behalf of the decree-holder is that inasmuch as the defendant, Behari, appealed to the District Judge against the original mortgage-decree and that appeal was dismissed, the Munsif had no jurisdiction to entertain an application under Order IX, Rule 13; and our attention has been drawn to the case of Sankara Bhatta v. Subraya Bhatta 17 M.L.J. 436 : 30 M. 535. That case seems to me authority for holding that the Munsif had no longer jurisdiction to entertain an application under Order IX, Rule 13, in respect to the mortgage-decree. The same view was taken in the case of Kumud Nath Roy Chowdhry v. Jatindra Nath Chowdhry 9 Ind. Cas. 189 : 15 C.W.N. 309 : 38 C. 394 at p. 402 : 3 C.L.J. 221. I think, therefore, that the Munsif's order restoring the original mortgage was made without jurisdiction.
4. It has been urged, however, by the learned Vakil for the judgment-debtor that this is a case in which we should not interfere. It appears to me, however, that the order passed by the learned Munsif has left matters in such confusion that if it is allowed to stand, the parties may be put to extremely contentious litigation. I find it impossible to understand what the Munsif really intends to do. Another reason which influences me is this: the judgment-debtor alleges that there was a binding compromise between the parties that if the amount due under the decree at the date on which it was originally made were deposited by the judgment-debtor, the decree-holder would give up the property. The decree-holder, however, denies that the compromise was exactly in these terms. He says that what he stipulated for was the amount due under the decree at the time when he purchased the property. The only piece of evidence is the order recorded by the Munsif and I think that as the decree-holder differs regarding the exact terms of the compromise, he should be allowed an opportunity of proving that the terms were as he states. That is the second reason for thinking that the case is not one in which we should decline to interfere. I, therefore, make the rule absolute, reverse the order of the Munsif setting aside the original decree and restoring the original suit. Under the peculiar circumstances of the case, I make no order as to costs.
5. I agree, for the reasons given by my learned brother, that the ex parte decree could not be set aside by the Munsif. There being no application on the record to set aside the sale, that sale must stand good. The judgment-debtor may take such steps as he may be advised to take for enforcing the compromise arrived at between the parties on the date of the Munsif's order.