1. This is an appeal from the order of the Second Subordinate Judge of Mymensingh, dated the 24th of March 1908.
2. It appear that Kadir Baipari and others applied to the lower Court to set aside an ex parte order absolute for foreclosure on the grounds, (1) that no notice had been given to them, before the order absolute was made; (2) that the opposite party had been partly paid off by a set off; (3) that the opposite party had granted an extension of the period of grace by one month for the payment of the balance, and instead of waiting for the expiry of the extended period, had applied for and obtained an order absolute within the said period.
3. The lower Court has held on the authority of Bibi Tasliman v. Harihar Mahto 32 C. 253 that where an order absolute is made without notice it can be set aside upon a proper case being made out and that such a case has been set up in the second and third grounds. The lower Court has, however, decided that this case has not been made out and that therefore the order absolute cannot be set aside.
4. The petitioner now appeals to this Court and the grounds urged on his behalf are those that were urged in the lower Court.
5. On behalf of the respondent a preliminary objection has been taken, to the effect that no appeal lies to this Court. Under Section 588, Clause 9, (the Old Procedure Code) an appeal lies from an order rejecting an application under Section 108, Civil Procedure Code, for an order to set aside an ex parte decree. We have, therefore, to see whether the order of the 25th November 1907 is an ex parte decree or not, and if it is an ex parte decree, whether under Section 108 of the old Code, the present petitioner as a defendant in the suit could apply to the Court by which the decree was made for an order to set it aside.
6. Under the last clause of Section 87 of the Transfer of Property Act, it appears that the order absolute is to be treated as a decree absolute. The principal question to be decided, therefore, is whether the order of the 25th November is an ex parte decree within the meaning of Section 108 of the Civil Procedure Code.
7. Section 108 occurs in Chapter VII of the Code, which Chapter deals with the appearance of the parties and the consequences of non-appearance. The kind of ex parte decree to which Section 108 of the Code refers is clearly the decree against a defendant referred to in Section 100 of the Code. We have, therefore, to see whether the order of the 25th November is an order passed under Section 100 of the Code. If it is an order under that section, the petitioner would certainly have a right to apply under Section 108, to the Court by which the decree was made, for an order to set it aside. Now clearly the order of the 25th November is not an order under Section 100 as it stands, inasmuch as that section refers to the initial stage of a suit when only the plaintiff appears, whereas the order of the 25th November is an order passed after the period of grace allowed by the Transfer of Property Act. If then it is only an order rejecting an application to set aside an ex parte decree under Section 100, that is appealable under Clause 9 of Section 588 of the Code, but the order of the 25th November cannot be treated as a decree ex parte made Section 100. It necessarily follows that the petitioner in this case has got no right of appeal. Nor in my opinion can the order of the 25th November 1907 be regarded as coming within Section 100 of the Code read with Section 157. That section has reference only to cases in which the parties do appear on a day to which the hearing been adjourned. But this case was adjourned to any particular date for making the order absolute. The plaintiff could apply on any day after the expiration of the period of grace and was not bound to give notice to the defendants. The section, therefore, has no application to the present case.
8. If the order of the 25th November 1907 was not passed either under Section 100 or under that section read with Section 157, an application to set it aside cannot, in my opinion come within Section 108. Kesharia Accomar Sreesnngjee v. Potooah Sett 2 C.W.N. 676. The same view is suggested by a perusal of the case of Bibi Tasliman v. Harihar Mahto 32 C. 253 where it was held that where an order absolute has been made under Section 87 or Section 89 of the Transfer of Property Act without notice to the mortgagor, the Court had an inherent power to deal with an application to set aside the order made ex parte, and could set it aside] upon a proper case being substantiated. If Section 108 applies to such case, what is the necessity of the reference to the Court's inherent powers. The mention of these powers suggests that the Courts cannot set aside such an order under Section 108, and that therefore its order is not appealable under Clause (9) of Section 588.
9. The lower Court has decided the case on its merits and has come to the conclusion that a proper case has not been substantiated. Although I am of opinion that the petitioner has no right of appeal, I have also considered the merits of the cast. It is alleged by the petitioner, that he had obtained a decree against Asalat Quadir and others for Rs. 600 which the opposite party had accepted as a set off, and that the opposite party had extended by one month the period of payment. Kader Bux, the petitioner, in his evidence says that Jitan Sarkar, Gora Chand Sarkar and Jarip Sarkar were present at his place when it was settled that Rs. 600 would be set off. None of these three men has been examined to prove the above fact. He also says that the set off was effected in the month of Assin and the extension of time was given in the month of Karlick. No information was given of either of the above two facts to the Court. Under Section 87 of the Transfer of Property Act, the Court may, upon good cause shown, and upon such terms, if any, as it thinks fit, from time to time postpone the day appointed for such payment. If the time for payment was extended by one month, as alleged, the petitioner should have asked the Court to extend the time of payment by one month.
10. The petitioner says in his evidence that although he has granted a receipt for Rs. 600 to his own judgment-debtors, yet he never took any receipt from Abdul Ali Fakir for that amount when he accepted the set off by way of part payment of his decree against the petitioner.
11. It is contended on behalf of the petitioner that it is only Abdul Ali Fakir, the opposite party, who has been examined to rebut the evidence of part payment and extension as given by a number of witnesses on behalf of the petitioner. Abdul Ali Fakir's evidence is negative evidence and I do not see how he could produce any other evidence than that of himself to prove that he never accepted the set off nor granted the extension.
12. In the above circumstances the petitioner fails on both the grounds, namely, that he has no appeal, nor has he proved satisfactorily that the set off was accepted by the opposite party who had extended that time of payment for the balance. Thus appeal is, therefore, dismissed with costs.
13. I agree that the appeal should be dismissed. On the merits, although the absence of any receipt is very unsatisfactory, yet I am impressed to some extent by the petitioner's oral evidence. I prefer, therefore, to rest the decision on the ground that no appeal lies, a point on which I entertain no doubt.