BISHAN DASS Vs. SHEELA

JUDGEMENT

(1.) During the course of proceedings in a suit pending between the parties, the trial Court on November 12, 1979 passed the following order :

(2.) At a later date, the defendant respondents treating the above-noted decree to be an ex parte decree made an application under order 9 Rule 9 of the Code of Civil Procedure for setting aside the same. Amongst others the grounds pleaded before the trial Court were that the counsel for the defendants had not informed them about the correct date of hearing, i. e. instead of November 12, 1979 they had been informed that the date of hear in the case was December 11, 1979 and that they had even lost faith in their counsel and for that reason engaged another counsel through whom they made the application under Order 9 Rule 9, Civil Procedure Code The tial Court treating the decree passed against the defendants to be an ex-parte decree set aside the same. It is this order of the trial Court which is now impugned in this petition.

(3.) Mr. Seth learned counsel for the petitioner maintains that the decree passed against the defendants having been passed on merits after closing their evidence under Order 17 Rule 3, the trial Court could not possibly treat the same to be an ex-parte decree and thug could not set aside the same in exercise of its powers under Order 9 Rule 9 Civil Procedure Code On the other hand, learned counsel for the respondent-defendants contends that the impugned judgment and decree against the defendants watt an ex-parse decree though it purported to have been passed on merits after closing the evidence of the defendants under Order 17 Rule 3, Civil Procedure Code