1. This is an appeal from a decision of the Subordinate Judge of Bhagalpur, reversing a decree made by the Munsif, on the ground that an order made by the Munsif under Section 108 of the Civil Procedure Code, setting aside an ex parte decree previously had before him in favour of the plaintiff, was wrong.
2. The Munsif, after setting aside the ex parte decree, heard the case upon the merits, decided in favour of the defendant, and dismissed the suit. The decision, therefore, of the Subordinate Judge setting aside (on the ground of limitation) the order of the Munsif under Section 108, and setting aside the decree arrived at by him at the subsequent hearing, substitutes for the decision on the merits an ex parte decision previously come to, without the defendant's case being heard at all.
3. The Subordinate Judge, in setting aside the decree of the Munsif, and restoring the ex parte decree, did not, of course, go into the merits of the case. He dealt with the order made by the Munsif under Section 108 as being appealable under Section 591, upon the case coming before him on general appeal, and amongst the different points that have been raised before us is the question whether or not under Section 591 it was competent for the Subordinate Judge to set aside the order under Section 108 which had been made by the Munsif.
4. We are of opinion that it was not competent for the Subordinate Judge to set aside that order under Section 591. By that section, 'if any decree be appealed against, any error, defect or irregularity in any such order affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.' Now the error or defect or irregularity which the Subordinate Judge found in the Munsif's order was that it was made after time, that is to say, after the thirty days provided by Article 164 of the Limitation Act had elapsed. But then the question is whether the Munsif, in making the order that the case should be heard upon the merits, made an order 'affecting the decision of the case' within the meaning of Section 591. We do not think that that section applies to an order setting aside an ex parte decree under Section 108. The object of Section 108 is to ensure that the defendant shall get a hearing, notwithstanding that he did not appear when the case was called on, if he had not been served with summons, or was prevented by sufficient cause from appearing. The first object and purpose for which Courts sit is, of course, that the parties shall be heard; the object of Section 108 is to ensure within reasonable limits as to public convenience that every defendant shall have a hearing. An order under Section 108 is not appealable under Section 588. Unless an order under that section is appealable by reason of its being an order' affecting the decision of the case,' it is not appealable under Section 591. Now in one sense it affects the decision of the case, because it ensures a decision upon the merits, and sets aside a decision which has not been obtained upon the merits, but we cannot think that that can be an 'affecting' within the meaning of the words affecting the decision of the case.' We think that the words 'affecting the decision of the cases' must be taken to mean 'affecting the decision of the case with reference to the merits of it,' and that an order under Section 108, which merely ensures a hearing upon the merits, cannot be considered to be an order affecting the decision of the case under Section 591.
5. We, therefore, set aside the decision of the Subordinate Judge, and we remand the case to him, in order that he may proceed with the hearing of the appeal according to law, upon the merits.