MAKARADHWAJA DHARUA Vs. NABA BHOI

JUDGEMENT

(1.) THIS Civil Revision is directed against the judgment passed on 26. 9. 1997 by the Additional District Judge, Bolangir in Misc. Judicial Appeal No. 14/16 of 1995 -96.

(2.) PETITIONER is the defendant in Title Suit No. 81/64 of 1984 of the Court of Addl. Civil Judge (Jr. Division), Loisinga. That suit had been posted to 5.10.1994 for filing of written statement. Defendant did not take any step and therefore, he was set ex parte. On 24.10. 1994 that suit was heard ex parte and judgment was delivered on 27.10.1994 granting an ex parte decree in favour of the plaintiff/ opp. party members. Defendant filed application under Order 9, Rule 13; of the Code of Civil Procedure, 1908 (in short, 'the Code'), and that was registered as M.J.C. No. 33 of 1994. After hearing the parties, learned Civil Judge on 31.7.1995 rejected the application under Order 9, Rule 13 of the Code. As against that, petitioner preferred the above noted appeal, which was heard and disposed of by learned Addl. District Judge, Bolangir. In the Civil Revision the sole prayer of the defendant/petitioner is to set aside the ex parte decree by interfering with the impugned orders and to grant an opportunity to him to contest the suit. In course of hearing of the Revision it was stated by learned counsel for the plaintiff/ opp. parties and not disputed by learned counsel for the defendant/ petitioner that another suit was instituted in the Court of Civil Judge (Senior Division), Bolangir, registered as Title Suit No. 1 of 1996. The subject matter of dispute in the suit of the year 1994 is also a part of the disputed property in the suit of the year 1996. Mr. H.S. Mishra, learned counsel for the opposite parties also stated that the suit of the year 1996 has also been disposed of in. the meantime. Mr. B. Pujari, learned counsel for the petitioner after obtaining instruction made a submission on 25.8.2003 that no appeal has been preferred as against the judgment and decree passed in the suit of the year 1996.

(3.) M .J.C. No. 33 of 1994 under Order 9, Rule 13 of the Code, is a proceeding arising out of Title Suit No. 81/64 of 1984. This Court, in the case of Simplex Engineering and Foundary Works Ltd. and two Ors. v. Bhubaneswar Pattnaik, 2003 (I) OLR 508, has held that a proceeding which is appelable under Order 43, Rule 1 of the Code and covered by the provision under Rule 431 of the General Rules and Circular Orders (Civil Vol. I) should be construed to be 'a proceeding' within the meaning of the term 'other proceeding' as provided in Section 115 of the Code. At that time the ratio in the case of Sri Vishnu Awatar etc. etc. v. Shiv Awatar and Ors., AIR 1980 SC 1575, was not brought to the notice of this Court on the matter relating to applying the principle of ejusdem generis so as to construe the meaning of the term 'other proceeding'. In the said reported case the Apex Court while considering the extent of the revisional jurisdiction under Section 115 of the Code, have been pleased to propound that :