KHAGESH CHANDRA Vs. CHANDRA KANTA BARUA AND ANR.

JUDGEMENT

(1.) THE only point for consideration in this Civil Revision is whether the Court had jurisdiction under Order 9, Rule 13, Code of Civil Procedure, to set aside a decree under which the suit had been dismissed on contest against one of the Defendants and decreed ex parte against the other, and restore the whole suit for fresh trial against both the Defendants.

(2.) THE relevant facts are that the Plaintiff Bank, which is Opposite Party No. 2 in this application, instituted Money Suit No. 34 of 1946 in the Court of the Additional Subordinate Judge at Tezpur for recovery of a certain sum of money as against the Petitioner and Opposite Party No. 1. The case of the Plaintiff, in effect, was that the Defendants to the suit had opened a Cash Credit Account with its Tezpur branch in order to get accommodation loan to the extent of Rs. 15,000/ -with interest, to enable them to carry on certain contract transactions. The Plaintiff stated that on 26 -10 -46, when the transactions were closed, a debit balance, inclusive of interest, to the extent of the amount claimed was found outstanding; and since the amount had not been paid, the Plaintiff prayed for a decree against both the Defendants making them jointly and severally liable.

(3.) THE language of Rule 13 of Order 9, Code of Civil Procedure, is specific and clear. The introductory part of the Rule is "setting aside decree ex parte 'against Defendant'." (The Underlines; here in are mine). The Rule evidently postulates that the decree should be against the Defendant, and not in his favour, in order to attract the operation of the Rule. The substantive part of the Rule also is to the same effect. It reads: