BALDEV RAJ GANDOK Vs. KISHAN SINGH PASRICHA

JUDGEMENT

(1.) This regular second appeal has been brought against judgment dated July 14, 1986, of Shri R. K. Sain, Additional District Judge, Delhi, by which he had dismissed an appeal brought against order dated October 3, 1983 of Shri K. S. Paul, Sub-Judge, Delhi, by which he had dismissed an application brought by the appellant seeking setting aside of ex-parte judgment and decree dated May 26, 1981. made in Suit No. 1151/80.

(2.) At the outset, I may mention that the regular second appeal is not competent against the impugned appellate judgment. Under Order XLIII Rule 1 (d) of the Code of Civil Procedure (for short 'the Code'), an order under Order IX Rule 13 of the Code rejecting an application for an order to set aside a decree passed ex-parte is appealable. That is why the appeal against the order of the Sub-Judge dismissing the application moved under Order IX Rule 13 of the Code was filed and was decided by the Additional District Judge. No second appeal has been provided in respect of such a proceeding. Section 101 of the Code lays down that no second appeal shall lie except on the grounds mentioned in Section 100 of the Code. Under Section 100 of the Code, the second appeal lies to the High Court from every decree passed in appeal. The appellate order made in the present case is not covered by the definition of decree as given in Section 2(2). 'Decree' means the formal expression of an adjudication which as far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The si-it in the present case determining the rights of the parties finally was decided ex-part the application moved for setting aside ex-parte decree was decided by the Sub-Judge and that decision does not have the effect of deciding any controversy arising in the suit. So, on the face of it, neither the order of the Sub-Judge dismissing the application filed under Order IX Rule 13 of the Code nor the order of appellate Court dismissing the appeal can be teimed to be included in the definition of 'decree'. Hence, I hold that the second appeal was not competent against the impugned order of the appellate Court. However, counsel for the appellant has prayed that the present appeal may be treated as a civil revision under Section 115 of the Code. It is true that this Court can treat the present appeal as a revision. However, the revision could be entertained only to see whether the courts below have exercised a jurisdiction not vested in it or have failed to exercise jurisdiction so vested or have acted in the exercise of its jurisdiction illegally or with material irregularity. I direct the office to register the present Regular Second Appeal as a civil revision.

(3.) I have heard the arguments in detail in order to see whether this Court should intervene with the orders of the courts below in exercise of its revisional powers.