MANGALSINGH Vs. SAGARMAL

JUDGEMENT

(1.) THIS matter has come before this Bench on a reference by a learned Single Judge. He has not formulated the question to be answered by the Bench. We shall, therefore, briefly give the circumstances in which the reference has been made, and then formulate the question arising therefrom.

(2.) A suit was brought by the plaintiffs who are opposite parties in this revision against three defendants. One of whom was Mangal Singh. Summonses were issued a number of times ag there was difficulty in service. One of the dates fixed was 16th of July, 1951. Summons was issued to Mangalsingh defendant who is the applicant in this revision for that date. The process server reported that Mangalsingh had refused to accept the summons. Therefore, the Court passed an order on the 16th of July, 1951, that there was sufficient service on Mangalsingh and that the proceedings should go on ex parte against him. After further adjournment, the case came to be fixed for the 8th October, 1952. On this date, Mangalsingh appeared and filed an application supported by an affidavit under Order 9, Rule 7. C. P. C. for setting aside the ex parte order. The matter was enquired into, and on the 30th of January, 1950, the trial Court passed an order dismissing the application under Order 9, Rule 7. The present revision application is against this order.

(3.) THE question then arises whether in such an appeal from the decree, the defendant can dispute the correctness of the ex parte order on the grounds mentioned in Order IX, Rule 13 when he has not made an application under that Order. This matter has been considered by various High Courts, and it has been held that if no proceedings are taken under Order IX, Rule 13, there is nothing to prevent the defendant, who files an appeal against the ex parte decree, to challenge the correctness of the order on the grounds mentioned in Order IX, Rule 13 C P. C. THE principle in Maharaja Moheshwar Sing'a case, (D) has been extended to cover this case also even though the proceeding under Order IX, Rule 13 is not an interlocutory proceeding, and comes into existence only after the decree has been passed. THE reasoning seems to be that if it was the intention of the legislature to bar such a point being raised when no action was taken under Order IX, Rule 13 a provision similar to sub-section (2) of Section 105 C. P. C. would have been made in the Code with reference to Order IX, Rule 13-proceedings.