RAM NARAIN AND ORS Vs. GOREY

JUDGEMENT

(1.) This is a Plaintiff's application in civil revision arising out of an order passed Under Order IX, Rule 13 Code of Civil Procedure It appears that Gorey the Defendant was personally served upon with summons. He was found absent when the case was called on for hearing on 17-3-1953, and the suit proceeded ex parte against him. Evidence was recorded on 22-4-1953, and ex parte decree followed on 30-4-1953. On 4-6-1953, Gorey applied Under Order IX, Rule 13 for setting aside the ex parte decree and for rehearing of the suit, and his allegation was that he came to know about the ex parte decree only on 4-6-1953. The application was shaped in a fashion as to indicate that the reckoning of time for purposes of limitation was to be made from 4-6-1953. In support of his application, Gorey however tried to prove that he had filed his written statement in the suit and that it was not placed before the court. The application for (sic) was not however founded upon any express allegation to that affect. Upon the evidence that was produced before him, the Munsif came to the conclusion that the written statement was never presented in the court. He further came to the conclusion that Gorey did come to court on 17-3-1953 and the written statement was prepared on his behalf by his counsel, but by mistake of the clerk of the counsel the written statement was not presented to the proper person, and was probably misplaced somewhere. He also came to the conclusion that the application Under Order IX, Rule 13, was within time inasmuch as Gorey got the 'knowledge' of the ex parte decree on (sic)-6-1953, although there was utter carelessness on the part of Gorey inasmuch as he did not try to know as to how further proceedings subsequent to 17-3-1953 were held.

(2.) It has been contended in revision by the Plaintiffs-applicants that the Munsif had no jurisdiction to set aside the ex parte decree as the application was barred by Article 164 of the Indian Limitation Act, having been filed beyond thirty days of the ex parte decree; and it has been urged that the Munsif acted in excess of jurisdiction, and illegally or with material irregularity.

(3.) Objection has been raised by Mr. Brij Lal Gupta on behalf of Gorey opposite-party to the effect that the order setting aside the ex parte decree is not revisable. Under Order 43, Rule 1(d) of the Code of Civil Procedure an appeal lies from an order rejecting an application Under Order IX, Rule 13. There is however no appeal from an order setting aside an ex parte decree, nor can any objection be taker to the order Under Section 105 of the Code of Civil Procedure in the appeal from a subsequent decree in the suit.