GANPATDAS Vs. KANARAM

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 14 -8 -78 of the learned Civil Judge, Churu by petitioner plaintiff whereby the appeal of the non -petitioners defendants was accepted and ex parte decree against them was set aside on payment of costs Rs. 50 within 15 days.

(2.) THE facts relevant for the disposal of this revision are these. The petitioner filed a suit for recovery of Rs. 2200/ - in the court of Munsif, Churu who passed an ex parte decree against the defendant by his judgment dated 23 -5 -75. On 25 -5 -1974 defendants moved an application under Order 9 Rule 13 CPC, for setting aside the decree. On 28 -12 -74 the trial court accepted the petition and ordered that ex parte decree be set aside on the condition that the defendants deposited the decretal amount in the court and paid Rs. 50/ - as costs to the plaintiff within thirty days. The decree shall be considered to be set aside only on the fulfilment of the above conditions. It further appears that the defendants preferred an appeal against the order dated 28 -12 -74 but the same was dismissed summarily presumably on the ground that the impugned order was not a final order. It may be stated that the defendants thereafter filed a review application which was dismissed. They preferred an appeal which was dismissed on the ground that no appeal against the order dismissing the review petition was competent. The defendants further approached the High Court by way of revision which was also dismissed in limini on 6 -5 -1976 However, before this on 5 -5 -1976 defendants moved an application before the trial court that a final order in his application for setting aside the ex parte decree may be passed because they had not complied with the conditions of the order. The trial court did not issue any notice of this application to the plaintiff and on 14 -5 -76 passed an order to the effect that the defendants had not deposited the decretal amount and the costs in compliance with the order dated 28 -12 -74 and, therefore, the application of the defendant dated 25 -5 74 under Order 9 Rule 13 CPC. may be deemed to be dismissed. Against this order the defendants filed an appeal and the learned Civil Judge accepted the appeal and passed the impugned order as stated above.

(3.) IT was argued by the learned Counsel for the petitioner that the order of the learned appellate court was without jurisdiction or in any case suffered from material irregularity in the exercise of jurisdiction because the impugned order was not the final order as the final order was already passed on 28 -12 -74. It was further contended that in any case the learned appellate court could not have set aside the ex parte decree without arriving at a finding that, the defendants were prevented by any sufficient cause from appearing when the suit was called on 17 -5 -74, when the ex parte evidence of the plaintiff was recorded. The defendants in such a case have to satisfy the court that they were prevented from attending the court because of any sufficient cause on the date when the ex parte evidence was recorded and the decree was passed No doubt before, the ex parte decree was passed, the orders for ex parte , proceedings were made by the court on 27 -4 -74 However, if the defendants wanted to challenge this order by which ex parte proceedings were directed against them, they should have moved an application under Order 9 Rule 7 CPC, as it was then in force in Rajasthan. On the other hand the defendants might have some good grounds for not attending the court on 27 -4 -74 but it was a wholly irrelevant consideration because the crucial day was 17 -5 -74. It is argued by the learned Counsel for the respondent that in fact the final order on the application of the defendants to set aside the decree was the impugned order and not the earlier order. It was further contended by them that when the appellate court accepted the appeal, it meant to say that there was sufficient cause for the non -appearance of the defendants on the date when the ex parte decree was passed. I have carefully considered the rival contentions.