CHANDRA MOHAN Vs. RAGHUNATH PD

JUDGEMENT

(1.) This is an application by plaintiffs against an order restoring an application made by the defendants respondents for setting aside an ex parte decree.

(2.) In 1931, the plaintiffs' mother filed a suit for a declaration that a certain will executed by her father in favour of the defendants was null and void. Raghunath Prasad, defendant opposite party, was one of these defendants. He did not contest the suit. The suit was contested by the first five defendants. The suit was decreed in 1933 by the trial Court. An appeal by the contesting defendants was dismissed for default by this Court in December 1933. More than 11 years later, that is, on 31st January 1945, Raghunath Prasad filed an application for setting aside the ex parte decree. This application was fixed for hearing on 15th September 1945. On that date the opposite party was absent and the Court fixed 17th September 1945 for hearing. On 17th September the opposite party made an application for adjournment. This application was allowed on payment of Rs. 25/- as costs and the case was fixed for hearing on 27th October 1945. On that date, the opposite party again absented himself and failed to pay the costs as ordered by the Court. The Court, however, passed the following order : "The decree sought to be vacated was passed on 26th April 1933 and the applicant says that he has had no knowledge in spite of lapse of about 12 years time. I disbelieve his version and reject the application with costs." Then on 28th November 1945 the opposite party made an application for setting aside the order of 27th October 1945. This application was headed as one Under Section 151, Civil P. C. The Court allowed this application by the order under revision. The order is a short one and may be quoted : "The reasons are fair. The man was ill. He had been asked to pay Rs. 25/- as costs on the earlier date and had not paid. I, therefore, set aside the ex parte order dated 27th October 1945 if the applicant pays Rs. 25/- to opposite party within 10 days of this date. On default this application will stand dismissed."

(3.) The plaintiffs have come up to this Court in revision against this order. On their behalf it has been urged that the Court, having dismissed the application for setting aside the ex parte decree on its merits by its order dated 27th October 1945, had no jurisdiction to set aside that order under its inherent powers. It is urged that the opposite party bad a right to have the order set aside by an appeal. He did not pursue that remedy and his application for setting aside the previous order was not entertainable. I think that this contention has force. As will appear from the order dated 27th October 1945, the Court had not dismissed the application for default of appearance of the opposite party, but had decided it on the merits. The application having been dismissed on merits, the opposite party had a right of appeal to the proper Court. He did not take recourse to that remedy. I think that, in the circumstances, the Court had no jurisdiction to set aside its own order under its inherent powers.