DWARIKA PRASAD KEJRIWAL Vs. RAJENDRA PRASAD SAO

JUDGEMENT

(1.) The opposite party, Rajendra Prasad Sao, filed Titled Suit no. 34 of 1976 in the second court of the Munsif, Monghyr, for eviction of the petitioner, Dwarika Prasad Kejriwal, from the suit premises and for arrears of rent on the allegation that Dwarika Prasad Kejriwal was his tenant and has defaulted in payment of rent. The learned Munsif decreed the suit expare on 23rd February, 1978. On 11th September, 1978 the petitioner filed an application under Order IX, Rule 13 of the Code of Civil Procedure, hereinafter called the Code, which was registered as Miscellaneous Case no. 45 of 1978 in the second court of the Munsif at Monghyr for setting aside that exparte decree on the ground that the aforesaid decree had been obtained by fraudulent suppression of the processes in the suit without knowledge to the petitioner and the petitioner could know about the decree only on 10th September, 1978. By that time the exparte decree for delivery of possession on the suit premises as are arrears of rent had been put into execution The petitioner who was judgment-debtor in Execution Case No. 8 of 1978 in which the execution was proceeding, on 11th September, 1978 itself filed an application before the executing court which was the same court who has passed the decree for staying the proceeding in the execution case pending the final disposal of Miscellaneous Case no. 45 of 1978 for setting aside the ex parte decree. The learned Munsif, after staying that the aforesaid petition had been filed and copy was served and both sides have been heard, passed the following order, "The execution is stayed till one week. The judgment debtor is directed to pay the decretal dues and cost of the suit within one week failing which stay order will stand vacated". It is against the aforesaid order that the petitioner has come up in revision in this Dourt.

(2.) Sri Jugal Kishore Prasad, appearing on behalf of the opposite-party, urged that the present revision application is not maintainable inasmuch as the order sought to be revised does not amount to a "case decided" by the learned Munsif, and therefore no revision lies. In support of this contention Sri Prasad has placed reliance on the decision of this Court in Ramgulam Choudhary and others v. Nawin Choudhary and others (AIR 1912 Patna 499) in which it was held that the order of the trial court allowing the plaintiff to adduce further evidence even after the defendants had already closed their case, did not amount to a case decided and, therefore, no revision under Section 11 of the Code of Civil Procedure was maintainable against that order. In coming to this conclusion Untwalia, J. as he then was, relied upon the decision of the Supreme Court in Baldev Das and another v. Filmistan Distributors (india)(P) Ltd. and others (AIR 1970 Supreme Court 406) that a case may be said to be decided if the court adjudicates for the purpose of the suit some right or obligation of the parties in controversy. It is argued that by refusing to stay the execution case during the pendency of the aforesaid miscellaneous case the court below did not adjudicate upon any right or obligation of the parties in controversy.

(3.) In my opinion, for the purpose of determining whether the impugned order amounts to a "case which has been decided", it is not necessary to consider whether the impugned order adjudicated upon any right or obligation of the parties in controversy. Subsequent to the aforesaid decision of Supreme Court, Section 115 of the Code has been amended by the Civil Procedure Code (Amendment) Act, 1976 (hereinafter called the Amendment Act, 1976) and in view of the Explanation inserted in Section 115 by the Amendment Act, 1976 the impugned order clearly amounts to 'a case which has been decided' within the meaning of expression as used in Section 115 of the Code. It is not disputed that the present case is governed by the Code as amended by the Amendment Act, 1976.