DHANI RAM Vs. ANANTU

JUDGEMENT

(1.) THE respondents (defendants) were set exparte on 5.2.1992 in the petitioners suit which was later decreed in exparte on 30.5.1995. They filed an application before the trial court and instead of seeking setting aside of the Exparte decree they sought recall of order dated 5.3.1992 whereby exparte proceedings were taken against them. The trial court allowed this application vide the impugned order dated 4.9.1993 on the ground that since the litigation related to land, they would be prejudiced if their application was not accepted. The court thereafter consigned the application to records and imposed costs of Rs. 200/ - on the defendants.

(2.) PETITIONER has questioned this order on the ground that it was incompetent and lacked in jurisdiction. His case is that the trial court could not have set aside an interim order dated 5.3.1992 and allowed the exparte decree to remain in tact and in operation. Learned counsel for the respondents, Mr. Basotra, firstly took a preliminary objection that this revision petition was not maintainable as the order impugned was appealable under Order XLIII Rule 1(d) C.P.C. I propose to get rid of the preliminary objection first and for this the relevant provision would have to be extracted. It reads thus:

(3.) A perusal of the provision shows that the submission of the counsel suffers from gross misconception. This provision, as is evident and obvious, deal with the rejection of an application made under Order IX rule 13 for setting aside an exparte decree and not an order rejecting an application for setting aside exparte proceedings which falls under rule 7 of Order IX. Therefore, it cannot be said or held that the impugned order passed by the trial court was appealable under Order XLIII Rule 1(d) to affect the maintainability of this petition. That apart, the impugned order appears to be patiently illegal on the fact of it and suffers from gross non -application of mind by the trial court. It is not understandable how the trial court had chosen to deal with the application for setting aside the interim order when admittedly exparte decree had been passed in the suit and when he was seized of the record of the suit. He had put the cart before the horse while allowing the exparte decree to operate any by setting aside an interim order to re -open the proceedings of the suit. The approach and action is unknown to the realm of civil law.