CHANDRA SAHAI Vs. DURGA PRASAD

JUDGEMENT

(1.) This Civil Revision arises uuder the following circumstances: A civil suit was instituted by the plaintiff in the Court of the Munsif at Kasganj. The summons was served personally on the defendant and the 8 of November 1921 was fixed for the settlement of issues. On that date, however, the defendant did not appear. The Court then passed an order that the case should be proceeded with ex parte and fixed the 28 of November for final hearing, On the 28 of November 1921 the defendant again did not appear and the suit was decreed ex parte. The defendant, however, did appear later on in the Court and put in an application under Order IX, Rule 13, of the Civil P. C. for setting aside the ex parte decree. He filed an affidavit in support of this application explaining why he was not able to appear on the former date and why ho appeared late on that date. The Court fixed the 14 of January 1922 for the disposal of this application. On that date the defendant again did not appear and this application was dismissed for default. After this, on the 21 of January 1922, the defendant put in a second application purporting to be an application under Order IX, Rule 13, in which a mention was made of the circumstances under which he was not present when his previous application was dismissed for default. An affidavit was also tiled showing that he was ill on the 14 of January 1922. The learned Munsif held that this second application was a substantial application under Order IX, Rule 18, and was in fact a fresh application under that rule, but as it was filed more than 30 days after the ex parte decree it could not be entertained. He accordingly dismissed the application under an order dated the 13 of July 1922.

(2.) The defendant went up on appeal from this last mentioned order to the Court of the District Judge. The learned District Judge has, allowed the appeal and set aside the order dismissing the application of the 21 of January 1922, and not the ex parte decree of the 28 of November 1921, and has directed the Court of first instance to dispose of the application of the 21 of January 1922 on the merits treating it as one for restoration of the application of the 28 of November 1921.

(3.) I am of opinion that the order of the learned District Judge cannot be maintained.