HAR BILAS Vs. JEEWA RAM AND ANOTHER

JUDGEMENT

(1.) This is a first appeal an Order of remand by the lower appellate court. The appeal came up before a learned single Judge who thought that the appeal raised a substantial question of res judicata and, therefore, he referred the case to a Bench for disposal.

(2.) The appellant before us was the defendant in the trial court. The suit was one for the setting aside of an ex parte decree which, according to the plaintiffs, had been obtained by fraud. The decree which was attacked and which was sought to be set aside was a decree for ejectment which had been obtained under the provisions of Sec. 220 of the Zamindari Abolition and Land Reforms Act.

(3.) It appears that the defendant had sued the plaintiffs for the recovery of arrears of rent and ejectment of the plaintiffs from certain plots of agricultural land. There was an ex parte decree in that suit. The plaintiffs made an attempt to have that ex parte decree set aside on the ground that service of summons had not been effected on them and that they had no knowledge of the suit. The application for the setting aside of the ex parte decree in the ejectment suit had apparently been made under the provisions of Or. 9, R. 13, C.P.C. The learned Assistant Collector of Bah, Agra, who had the application before him, came to the conclusion that it had not been proved that there was no service of summons or that the plaintiffs did not know of the suit. He further found that the application for setting aside the ex parte decree was barred by time. He, therefore, dismissed the application and refused to set aside the ex parte decree. It is interesting, however, to note in this connection that the allegations made in that application against the Kurk Amin which amounted to collusion and fraud were not considered for purposes of giving relief to the applicants under the provisions of Rule. 13 of Or. 9, and the applicants were told that if they so chose, they could seek their remedy in some appropriate proceedings under the Code open to them. This observation of the learned Assistant Collector clearly showed that the Assistant Collector refrained from going into any question of fraud that may have been raised before him, and indeed, in our opinion, he was not wrong, for Or. 9, R. 13 is limited in its scope for giving relief to a party, who seeks the setting aside of an ex-parte decree, to the ground that either the party had not been duly served or that he had been prevented by any sufficient cause from appearing when the suit was called on for hearing. This Court has added a Proviso to the rule, as it originally stood, and the Proviso added reads thus :