RADHASHYAM MOHANTY Vs. NARAYAN CHANDRA NATH

JUDGEMENT

(1.) THE Defendants Nos. 1 and 3 in Original Suit No. 229 -I of 1980 of the Court of the Munsif, Bhadrak are the Petitioners in this revision. They have challenged the order of the learned Munsif dated 10:

(2.) DEFENDANT No. 4 is the father of the Plaintiffs and Defendant No. 2. The Plaintiffs filed the aforesaid suit for declaration of tile and other consequential reliefs in respect of the suit land on the basis of purchase by them under a registered sale deed dated 20 -3 -1961 from Ananda Nath, who was the father of Defendant No. 4. The case of the contesting Defendant No. 1 is that the sale deed dated ' 20 -3 -1961 is a collusive and inoperative document under which no title could pass to the Plaintiffs. He alleged that after the death of Angada Nath, Krishna Chandra, Defendant No. 4 became the Karta of the family and in such capacity sold the suit land to Defendant No. 3 on 15 -4 -1969 and 24 -5 -1969 from whom Defendant No. 1 had purchased the suit land.

(3.) BEFORE going to examine the contentions raised by the learned Counsel, appearing for the parties, it is necessary to elucidate the position of law relating to passing of an ex parte order and the effect of the same being set aside on a subsequent stage. After the summons are duly served if the Defendant does not appear when the suit is called on for hearing, the Court is entitled to make an order that the suit be heard ex parte. The provision under Order 9, Rule 7 of the Code of Civil Procedure is that where the Court has adjourned the ex party hearing of the suit, and the Defendant, against whom an ex parte order has been passed, at or before such hearing appears and assigns good cause for his previous non -appearance, the Court may set aside the ex parte order on such terms as to costs or otherwise, permitting him to be heard in answer to the suit as if he had appeared on the date fixed - for his appearance. It has been clearly indicated by several decisions of Supreme Court as well as by this Court that a Defendant, against whom an ex parte order has been passed under Order 9, Rule 6 of the Code of Civil Procedure is not debarred from participating in the further proceeding of the suit, whatever remains when he make his appearance in the suit. But he would not be entitled to be relegated to the position he was occupying on the date when he was set ex parte and consequently he cannot enjoy the rights and privileges to which he was entitled to, before the ex parte order was passed against him. The only effect of the setting aside of an ex parte order under Order 9, Rule 7, Code of Civil Procedure is to set the clock back by permitting such a Defendant to avail the opportunities he had, in the matter of contesting the suit from the state before he was -set ex parte.