BAVA LEVVAI SAHIB Vs. AMMEENAMMAL

JUDGEMENT

(1.) This appeal is against the final decree passed in a partnership suit. The course of the proceedings before the District Munsif was that, after the preliminary decree had been passed, the scope of the enquiry was defined in an order dated 25-9-1916 and the suit was then posted for evidence.

(2.) On the date, to which it was adjourned, the 1 defendant did not appear to adduce his evidence; and the District Munsif declared him ex parte. A decree was afterwards given on the basis of the evidence adduced by the other parties to the proceedings; and against that decree there was an appeal to the Lower Appellate Court, by the 1 plaintiff. There was also a memorandum of objections by the 1 defendant, in which he complained inter alia of his having been debarred from producing evidence. The lower appellate Court held that his absence on the date of hearing was sufficiently explained and the District Munsif's order placing him ex parte and excluding his evidence was not justified. It therefore remanded the suit directing that his evidence should be taken, and we first deal with the appeal so far as it is against that direction.

(3.) It is urged that the 1 defendant was not entitled to bring his objection to the enquiry, based on his having been placed ex parte before the appellate Court in a memorandum of objections, unless in the words of Order 41, Rule 22 (1), C.P.C., he could have taken his point by way of appeal. The right of a person who has been placed ex parte to impugn the decree ultimately passed on that was recognised in Krishna Aiyar V/s. Kuppan Ayangar I.L.R. 30 M. 54 subject to the qualification, which is emphasized in Badvel Chinna Asethu V/s. Vattipalli Kesavayya (1919) 39 M.L.J. 697 that he has not moved the Court of first instance to set aside the ex parte decree under Order IX Rule 13 of the Civil P. C.. It is urged however that in effect the 1 defendant had so moved the Court, because before the decree was passed, but under the incorrect impression that it had been passed, he presented a petition asking the District Munsif to allow him to make a defence and produce his evidence and the District Munsif disposed of that petition on its merits. Such a petition is not a remedy recognised by the Code; and we do not see how the fact that it was intended to be and believed to be a petition recognised by the Code can alter its real nature or give it and the order passed on it a legal effect, to which they would not in fact be entitled. Taking this view, we regard the case in Krishna Aiyar V/s. Kuppan Aiyangar I.L.R. 30 M. 54 as in point, and hold that the 1 defendant is entitled to object to the order placing him ex parte in his memorandum of objections. Nothing has been said here against the lower appellate Court's conclusion that he was wrongly placed ex parte, and its decree so far as it directs the District Munsif to hear his defence and to take his evidence must therefore stand.