NARAYAN PUTAPA CHANDRAGATGI Vs. VAIKUNT SUBAYA SONDE

JUDGEMENT

(1.) In our judgment the question submitted to this Fall Bench ought to be answered in the affirmative

(2.) The final result of the applicants application to have the ex-parte decree set aside was that it was rejected. Whether one arrives at that result by reading into the order of May 30, 1925, an implication that, if the conditions therein mentioned were not satisfied, the application would be rejected ; or, whether we take the later order of July 18, 1925, which specifically stated that as the conditions were not satisfied, the application was rejected, I think the practical result is the same. Consequently, in our judgment, there was "an order under Rule 13 of Order 9 rejecting an application...for an order to set aside a decree passed ex parte" within the meaning of Order 43, Rule (1)(d), and, therefore, an appeal lay under Order 43.

(3.) In effect the order of May 30, 1925, was a conditional order for rejection of the application. This conditional order did not finally set aside the decree Consequently, at the outset, there was no order "setting aside the decree" within the meaning of Order 9, Rule 13. Still less did the Court appoint a day for proceeding with the suit as directed by that rule. Under those circumstances we do not think it necessary to comment on the different practices which seem to prevail in the mofussil and on the Original Side of this Court respectively. My brothers Shah and Fawcett tell me that in the mofussil it is usual to make two orders viz., (a) a preliminary conditional order like that of May So ; and (b) a final order like that of July 18. That, indeed, is the practice pointed out in Jagarnath Sahi V/s. Kamta Prasad Upadhya [1914] 36 All. 77. On the Original Side", the usual order provides that if the applicant does not comply with the conditions therein stated, then his application is to be dismissed, and the original ex-parte decree to stand. In other words, on the Original Side we usually have one order and not two as is the case hero. But, whichever course is adopted, in my opinion, it makes no difference in principle.