BABU LAL Vs. RAGHUNANDAN

JUDGEMENT

(1.) This is an application for revision of an order passed by the learned District Judge of Allahabad confirming that of a Munsif of that district dismissing an application made by the applicant before us for an order to set aside an ex parte decree passed against him under Order 34, Rule 6, Civil P.C.

(2.) The applicant Babu Lal executed a deed of simple mortgage in favour of Raghunandan for a certain sum of money on 15 July 1913. Raghunandan brought Suit No. 241 of 1924 for enforcement of that mortgage and for a personal decree in case the proceeds of sale of the mortgaged property proved to be insufficient to satisfy the decretal amount. A preliminary decree was passed on 22 May, 1924, in terms of the prayer made by the plaintiff in the aforesaid suit. Subsequently Datti Lal instituted suit No. 267 of 1925 for a declaration that the property mortgaged by Babu Lal belonged to him and that Babu Lal had no right to mortgage the same. The suit was decreed and the decree was affirmed on appeal. The result of the decree in the suit last mentioned was that the mortgaged property and consequently the expected proceeds of sale thereof were not available to the mortgagee.

(3.) On 30 August 1927, Raghunandan applied for a decree under Order 84, Rule 6, Civil P.C., and obtained it ex parte on 22 October, 1927. On 22nd December 1927, Babu Lal applied under Order 9, R, 13, Civil P.C., for an order setting aside the ex parte decree on the allegation that he had sufficient cause for non- appearance on the date on which the ex parte decree was passed. The Court of first instance (a Munsif of Allahabad) dismissed it on the ground that an application under Order 34, Rule 6, Civil P.C., is an application made in execution proceedings and consequently an application for an order to set aside an ex parte decree under Order 9, Rule 13, is not maintainable. An appeal by Babu Lal to the learned District Judge was unsuccessful. He has come up to this Court in revision.