SHIDRAMAPPA IRAPPA SHIVANAGI Vs. BASALINGAPPA KUSHAPPA KUMBHAR

JUDGEMENT

(1.) The question arising for decision in this revisional application is whether a decree passed by the Court on evidence led by the plaintiff after the defendant's pleader withdrew for want of instructions is an ex parte decree or a decree on the merits.

(2.) The facts of the case are that after the suit was taken from the sine die list, it was fixed for evidence on September 8, 1939. On that date the defendant and his witnesses were absent. His pleader's application for adjournment on that ground was rejected. Thereupon he withdrew from the case stating that his client had not turned up and he had no instructions. The plaintiffs pleader then led his evidence and the Court passed a decree in their favour. Thereafter the defendant applied to have the decree set aside and the suit restored to file on the ground that he was not able to attend the Court because of his illness and his pleader had to withdraw for want of instructions after the application for adjournment was rejected.

(3.) The learned Judge held that the decree was not passed ex parte but on the merits and the defendant was not, therefore entitled to apply for setting it aside under Order IX, Rule 13, of the Civil Procedure Code. On appeal, the learned District Judge held that the decree was ex parte and the defendant's application was, therefore, maintainable and should be disposed of on its merits. This revisional application is preferred against that order.