KRISHNA RAJENDRA MILLS LTD Vs. MAJETY SESHAGIRI RAO

JUDGEMENT

(1.) This Revision Petition is directed against the Order of the District Munsif Eluru dated 23rd April,1957 whereby in consequence of his prior order setting aside the ex parte decree as against defendant No. 1 he reopened the suit as against defendants 2 and 3 also even though it was dismissed as against them. The suit was for damages for non-delivery of goods consigned by defendant No. 2. The plaintiff in his suit prayed for a decree primarily against the first defendant and in the alternative. against the 2nd defendant and his agent the 3rd defendant. All the defendants resisted the claim of the plaintiff but eventually the first defendant was set ex parte on 21st August 1956. The plaintiff then examined himself as a witness. He stated in his deposition that if a decree be given against the railway he would not desire to have a decree against defendants 2 and 3. Defendants 2 and 3 were represented by their counsel. A decree was passed against the first defendant for a sum of Rs. 2,062-9-0 with proportionate costs and the suit was dismissed against defendants 2 and 3.

(2.) On 6th September, 1956, the first defendant filed I.A. No. 1853 of 1956 under Order 9, rule 13, Civil Procedure Code, for setting aside the ex parte decree. The plaintiff resisted the petition and requested at the same time that if for any reason, the ex parte decree is set aside against the first defendant the order of dismissal of suit passed against defendants 2 and 3 may also be set aside so that the status quo ante may be restored against all the defendants and the suit be tried and disposed of on merits. Defendants 2 and 3 claimed that the dismissal was on merits in that the plaintiff did not establish any case against them. The learned District Munsif allowed the petition under Order 9, rule 13, Civil Procedure Code, and set aside the ex parte decree on 4th February, 1957, but did not grant the request of the plaintiff that the suit should be restored against defendants 2 and 3. He, however, observed that if there is any appropriate provision to bring them on record or proceed against them independently the plaintiff may have recourse to the same. This led to another application I.A. No. 247 of 1957 which was made by the plaintiff on 4th March, 1957, under section 151, Civil Procedure Code, for setting aside the order of dismissal of the suit against defendants 2 and 3 and restoring the suit to its original state. This was opposed by defendants 2 and 3 but the learned District Munsif set aside the order of dismissal of suit against defendants 2 and 3 holding that he had power to do so under section 151, Civil Procedure Code. The present Revision Petition is directed against this order.

(3.) This matter originally came before Chandrasekhara Sastri, ]., who referred the same to the Bench. It is manifest that the decree in the suit was an ex parte decree as against defendant No. 1 but the same cannot be said as regards the dismissal of the suit against defendants 2 and 3. The said defendants had contested the suit till the end. The plaintiff, of course, would not desire to have the suit decreed against defendants 2 and 3 in case a decree could be passed against defendant No. 1. The learned Judge found that defendant No. I was liable for the suit amount. He accordingly decreed the suit as against defendant No. 1. He then dismissed the suit as against defendants 2 and 3 as per the request of the plaintiff. Though there may be thus only one decree passed in the suit as a whole, in substance there were two decrees- one against defendant No. 1 and the other in favour of defendants 2 and 3 one was ex parte and the other was otherwise. An ex parte decree may be set aside like any other decree on review or appeal. But, there is also a further remedy of getting the ex parte decree set aside and that is by way of an application under Order 9 rule 13 Civil Procedure Code. Order 9, rule 13., Civil Procedure Code. reads thus :