LAWS(PVC)-1913-12-6

JAGARNATH SAHI Vs. KAMTA PRASAD UPADHYA

Decided On December 12, 1913
JAGARNATH SAHI Appellant
V/S
KAMTA PRASAD UPADHYA Respondents

JUDGEMENT

(1.) The appellants before us were defendants in a suit in which an ex parte decree was passed on the 12th of August, 1911. They applied in due course under order IX, Rule 13, Civil Procedure Code, to have the ex parte decree set aside. Under circumstances with which we are not now concerned this application only came up for disposal before the Subordinate Judge of Jaunpur, on the 31st of March, 1913. After evidence had been taken the learned Subordinate Judge expressed himself as satisfied that the applicants had shown-sufficient cause for having the ex parte decree set aside. He then passed an order the first portion of which formally allows the application, sets aside the ex parte decree and directs the suit to be restored to its original number for re-trial. To this, however, the following direction was appended, " but the order of restoration will be subject to the payment of Rs. 15 as damages by the applicant within three days to the plaintiff," The learned Subordinate Judge who passed this order happened to be transferred almost immediately afterwards, and on the 4th of April, 1913, the matter came before his successor. It appears that the applicants had neither made nor tendered any payment to the plaintiffs before the 4th of April, 1913, on which date the money was tendered in court and the plaintiff refused to accept it. The question then arose whether the learned Subordinate Judge had jurisdiction to extend the time fixed by the order of the 31st of March, 1913, for payment of this money, and in any case what orders should now be passed on the application to set aside the ex parte decree.

(2.) The learned Judge of the court below has recorded a detailed order in which he concludes by expressing his opinion that he has no jurisdiction to entertain the application for extending the time and also that the order decreeing the suit etc parte must How stand. In accordance with tins judgment a formal order was drawn up definitely dismissing the application to have the ex parte decree of the 12th of August, 1911, set aside. Hence the appeal now before us. It was contended at the outset on behalf of the respondents that no appeal lay, as the order under appeal was merely an order refusing to extend time, for which no appeal is provided. It is admitted that an appeal lies from an order rejecting, though not from an order allowing, an application under order IX, Rule 13; but it was contended on behalf of the respondent that the only order passed under the provisions of order IX, Rule 13, was the order conditionally granting the application. It seems to us that the appeal before us is in substance and reality an appeal against the formal order which followed on the judgment of the 12th of April, 1913, by which formal order the application for setting aside the ex parte decree was finally disallowed. We are, therefore, satisfied that an appeal does lie.

(3.) The next question is as to the jurisdiction of the learned Subordinate Judge when, on the 4th of April, 1913, the money directed to be paid as damages was tendered by the applicants, one day after the prescribed time. It seems to us that the provisions of order IX, Rule 13, do not contemplate the passing of a conditional order such as to have an effect analogous to that of a preliminary decree in a suit for pre-emption or on a mortgage. The proper order for the learned Subordinate Judge to have passed on the 31st of March, 1913, if he desired to put the applicants to terms in the manner in which he did, would have been an order directing that the applicants should deposit in court a sum of Rs. 15 on or before the 3rd of April, 1913, and that their application should then be put up for final disposal. In our opinion the order actually passed can only he dealt with as one having substantially the effect stated above. On the order as passed, the application to have the ex parte decree set aside was not finally disposed of, and a further formal order of some sort or kind remained necessary to be passed after the expiry of the time fixed by the court.