GURUNATH EKNATH SUKRE Vs. LAXMIBAI GOVIND KANISTA

JUDGEMENT

(1.) THIS is a revision application against an order made in appeal by the Assistant Judge of Sholapur, The matter has been referred to a bench, because it was thought that there is some conflict between the decisions of this Court in Basayya v. Allayya (1925) 27 Bom. L.R. 477 and Rukmansa Rajansa v. Shankargouda Basangouda (1940) 42 Bom. L.R. 1111, and that this case is one of a similar character. In point of fact, this case is governed by different considerations.

(2.) THE difficulty which arises in all these cases is as to the application of Order IX in cases in which there has been an adjournment, and which fall under Order XVII, Rule 2, of the Civil Procedure Code, 1908. In the present case the hearing was fixed for February 14, 1939, and there was an adjournment to February 16, and on that date the defendant applied for a further adjournment which was refused. THE learned trial Judge then heard the evidence of the plaintiff, and gave judgment in his favour. Subsequently the defendant applied under Order IX, Rule 13, of the Civil Procedure Code, to set the judgment aside, on the ground that it had been passed ex parte. THE learned trial Judge held that the decree was not made ex parte, but was passed on merits, and, therefore, it could only be reversed in appeal. In appeal the learned Assistant Judge held that the decree had been passed ex parte, and that the learned trial Judge ought, therefore, to have dealt with the application to set it aside under Order IX, Rule 13.

(3.) THE decision of the learned Assistant Judge was right, and the application will be dismissed with costs.