ARJUN NAYAK Vs. SMT. MALATI DAS

JUDGEMENT

(1.) Both the appeal and the revision are between the same parties end relate to the same property and arise out of a common proceeding and were, therefore, heard together and are being disposed of by this common judgment

(2.) Defendant is the appellant in the First Appeal against a preliminary decree in T.M.S. No. 218 of 1980 wherein the defendant has been directed to pay a sum of Rs. 5,410.00 with pendente lite and future interest at the rate of six per cent per annum and the costs of the suit to the plaintiff within two months from the date of the passing of the decree, failing which the plaintiff would be entitled to apply for final decree debarring the defendant from the right to redeem the mortgaged property described in Schedule-B of the plaint. The memorandum of appeal was presented in this Court on 4.10.1983 and along with the same, an application was filed under Order 44 of the Code of Civil Procedure for being permitted to pursue the appeal as an indigent person. That application was registered as M.J.C.No. 132 of 1983 and notice was issued to the respondent on that matter by order dated 14.2.1984. On an application for stay of further proceedings in the final decree proceedings having been filed the High Court directed that the final decree proceedings might continue but signing of the final decree be stayed until further orders. On 2.3.1984, the appellant entered appearance in the final decree proceedings and filed a memo indicating the order of stay granted by the Honourable High Court. On 3.4.1984, the order of the High Court granting stay of signing of the final decree was communicated to the trial Court. In view of the stay order granted by the High Court, the defendant did not take any steps in the final decree proceedings. On 18.2.1985, the High Court rejected the prayer of the defendant to continue the appeal as an indigent person and granted two months time to pay the Court-fee and the required Court-fee was paid on 15-4-1985. The plaintiff, respondent in the appeal, filed a memo on 6.4.1985 in the final decree proceedings stating therein that M.J.C. No. 132 of 1983 having been rejected by the High Court on 18.2.1985, the final decree may be signed. This memo, however, had not been served on the defendant-appellant. The learned Trial Judge being of the view dial the interim order staying the signing of the final decree passed on 14.2.1984 lapsed along with the dismissal of the M.J.C. on 18.2.1985, signed the final decree on 11.4.1985 and got it sealed On 17.1.1986, the plaintiff-respondent filed a memo in the First Appeal stating that the appeal had become in-fructuous since the final decree had been signed and sealed and a copy of the same was served on the advocate for the appellant. In view of this disclosure made, the appellant made enquiry and came to learn that the plaintiff-respondent had initiated execution case in the Court of the Subordinate Judge, 1st. Court, Cuttack, being Execution Case No. 226 of 1985. On an application being filed by the defendant-appellant, the High Court passed an order on 24.1.1986 in the first appeal that the further proceedings in the execution case be stayed and steps be taken by the appellant to challenge the final decree. The defendant thereafter filed an application under Order IX, Rule 13, Code of Civil Procedure, for setting aside the ex-parte final decree along with a petition for condoning the delay, which was registered as Miscellaneous Case No. 9 of 1986. That miscellaneous case was allowed by order dated 25.11.1988 on a finding that there was sufficient cause for the delay in filing the application under Order IX, Rule 13 and there was sufficient cause for the non-appearance of the defendant on the date when the ex-parte decree was signed and sealed. Against the aforesaid order dated 25.11.1988, the plaintiff has filed the revision which is registered as C.R.No 962 of 1988.

(3.) In the premises, as aforesaid, it is necessary to consider the merits of the revision first. According to Mr. Patra, the learned counsel for the petitioner in the revision, the interim order dated 14.2.1984 staying the signing of the final decree was passed in the M.J.C that was registered on the application filed for prosecuting the appeal as an indigent person. That application having been rejected and M.J.C. having been dismissed on 18.2.1985, the interim order automatically lapsed and, therefore, the Trial Judge was fully justified in signing and sealing the final decree on 11.4.1985 pursuant to a memo filed by the plaintiff-petitioner. It was further argued that the defendant having appeared in the final decree proceeding on 2.3.1984 and the draft final decree having been notified to the parties by the Court on 8.4.1985, there was no sufficient cause for the defendant not to appear on 11.4.1985 when the said final decree was signed and scaled. It was also contended that the defendant not having examined himself nor having adduced any evidence and there being no finding of any sufficient cause for the defendant's non-appearance on the date of signing and sealing of the final decree, the trial Judge committed an error of jurisdiction in setting aside that ex parte final decree.