PARBAT SINGH Vs. BHANWAR SINGH

JUDGEMENT

(1.) THIS second appeal by the defendant is directed against an appellate judgment and decree of the Revenue Appellate Authority, Udaipur, dated 12. 4. 62 dismissing the appellant's first appeal against a judgment and decree of Sub Divisional Officer, Partapgarh dated 28. 7. 61. The facts of the case are that the respondent had instituted a suit under sec. 183 of the Rajasthan Tenancy Act against the appellants. After filing the written statement, the appellants failed to appear before the court. Thereupon the learned Sub-Divisional Officer proceeded ex parte against the defendants and after taking evidence of the plaintiff decreed the suit. Aggrieved by this decree, the defendant went up in appeal before the learned Revenue Appellate Authority, Udaipur. The Revenue Appellate Authority, as stated above, dismissed the appeal and it appears in this decision he was influenced by the fact that the defendants had taken no steps to get the ex-parte order in the trial court against them set aside. THIS is evident from the perusal of his judgment as he has repeated it twice and also mentioned the fact that even before him nothing was mentioned about the correctness or otherwise of the ex-parte order. We are afraid, the Revenue Appellate Authority was in error in taking this view. There are more than one remedies open to a judgment debtor against whom an ex parte decree has been passed. Two of these several remedies are (1) he may apply to the court giving the decree itself for setting aside the decree or (2) he may appeal from that decree. In this case the defendant chose the second remedy and when he had come up in appeal against the merits of the decree it was not open to him to make a grievance of the legality or propriety of the ex-parte decree. In this connection we would refer to I. L. R. 1953 page 179 a decisi6n of the Rajasthan High Court, wherein it has been clearly held by Bapna, J. that it is not open to a party challenging the merits of an ex-parte decree to assail the propriety or legality of the ex-parte decree itself. According to the learned Judge, the party has to restrict itself to the merits of the decree. Thus we find that the learned Revenue Appellate Authority has dismissed the appeal on grounds which did not justify the dismissal. He should have heard the parties on merits and then decided the case on them.

(2.) ACCORDINGLY, we accept this appeal, set aside the order of the learned Revenue Appellate Authority and send the case back to him to hear and decide the case afresh in accordance with the law. .