LAWS(PVC)-1936-9-78

NATHUNI SINGH Vs. KHUB LAL SINGH

Decided On September 02, 1936
NATHUNI SINGH Appellant
V/S
KHUB LAL SINGH Respondents

JUDGEMENT

(1.) This is an appeal against an order dismissing for default an application under Order 9, Rule 13, for setting aside an ex parte decree. The appellants were defendants in a mortgage suit in the course of which, on 22 August, 1934, a petition for a month's time to compromise was filed on behalf of both the parties. This petition was rejected summarily by the Subordinate Judge and the plaintiffs then declared themselves to be ready to proceed with the suit, while the appellants were not ready. The Subordinate Judge then heard the plaintiffs and decreed the suit ex parte the next day. The application for setting aside the decree was filed within time on 19 September, and on 18 March, after some adjournments, the appellants were ready with their witnesses while the opposite party applied for time. 30 March was fixed, and on that date a medical certificate was filed to the effect that Kailu Singh, who was one of the appellants and was looking after the appellants case, was suffering from dyspepsia and could not attend the Court. The learned Subordinate Judge summarily rejected this petition and dismissed the application, and the appellants have now come before this Court.

(2.) In this case there are considerations favourable to the appellants, as the order-sheet shows that the appellants were ready with their witnesses on the previous date, which makes it less easy to hold that their application for time on 30 March was mala fide or to justify the summary rejection of the medical certificate which was granted by a practitioner under the employment of the District Board. Also it appears that the appellants had reasonable ground for asking for the restoration of the suit, namely that a petition for time to compromise filed on behalf of both the parties was refused. In the circumstances we think it proper to allow this appeal, as well as the application under Order 9, Rule 13, and to set aside the ex parte decree in its entirety: parties will bear their own costs in this Court. Mohamad Noor, J.

(3.) I agree.