MUZAMMAL HUSSAIN AND ORS. Vs. CHANGANLAL JAIN

JUDGEMENT

(1.) THIS is a revision under Section 115 , Code of Civil Procedure on behalf of the Plaintiff challenging the order of the Subordinate Judge granting an application for setting aside an ex parte decree passed on the 20th February, 1963. The suit came up for hearing on the 21st December, 1962. On that date a joint application was made for adjournment of the case as there was some talk of compromise. On 20th February, 1963 the Plaintiff appeared with his witnesses but as the Defendant was not there, it was ordered that the suit should proceed ex parte. Then the evidence on behalf of the Plaintiff was taken and the following order was passed:

(2.) THE contention of the Petitioners is that the ex passed by the trial Court on the 20th February 1963 was one under Order 17 Rule 3, Code of Civil Procedure and not under Order 17 Rule 2 so as to attract the provision of Order 9 Rule 13, Code of Civil Procedure The remedy of the Defendant was to file an appeal. Mainly it is urged that when the Defendant was present in Court the decree cannot be an ex parte decree at all. There is nothing in Order 17 Rule 2 which says that an ex parte decree cannot be passed when the Defendant is physically present. Order 17 Rule 2 provides as follows:

(3.) DEALING with the case of 'Brojendra Nath v. Promatha Bhusan' : AIR 1933 Cal 412 the learned single Judge observed as follows at page 100 of the report: