DHONDU NARAYAN SHET Vs. VAMAN GOVIND PATVARDHAN

JUDGEMENT

(1.) IN this case the suit was in the first instance decided in favour of the plaintiffs, a decree being made ex parte owing to the non-appearance of the defendant. Subsequently on the defendant's application that ex parte decree was set aside, and there was a hearing on the merits with the result that the plaintiffs suit was dismissed. The plaintiffs appealed from this decree of the Subordinate Judge to the District Court, and made it a ground of their appeal that the lower Court acted wrongly in setting aside the ex parte decree. The learned District Judge considered the gr ounds on which the ex parte decree was set aside and held that they were not such as to justify the lower Court in setting aside the decree, and therefore allowed the appeal and restored the original ex parte decree. The case now comes before us in second appeal, and the first point raised for determination is whether the District Judge could consider the propriety of the order setting aside the ex parte decree. That order was made under Order IX, Rule 13, and under Order XLIII there is an appeal provided from an order under Rule 18 of Order IX rejecting an application for an order to set aside a decree passed ex parte and no appeal is provided against an order setting aside such decree. Now under Section 165, Clause (1), where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of appeal in the memorandum of appeal, and the question before us is this, whether the words, "error, defect or irregularity in any order, affecting the decision of the case" are sufficiently wide to cover an order setting aside an ex parte decree. There appears to have been considerable difference of judicial opinion upon this point, and a number of cases have been cited before us. There is only one case of this Court which in any way bears upon the matter, and that is Motilal Kashibhai v. Nana (1892) I.L.R. 18 Bom. 35. IN that case, however, the point did not arise directly for decision in the way in which it has arisen before us. The question there was whether in a particular case it was proper to exercise the revisional powers of the High Court under Section 622 of the Civil P. C.. The order sought to be revised was no doubt an order setting aside an ex parts decree, but the question whether in an appeal under Section 591 such an order can be made a ground of objection against the final decree was not considered. It was assumed that such order could be made a ground of objection, and, therefore, that case is hardly a decision directly in point upon the matter now before us. There are several decisions of the other High Courts bearing upon this point, and among them we find in Sundar Singh V/s. Nighaiya (1923) I.L.R. 6 Lah. 94 that the majority of the previous decisions of the various High Courts are set out. That was a case strictly in point and the ground on which the decision was based was that an erroneous order accepting an application to set aside an ex parts decree did not affect the decision on its merits, and that seems to me to be a correct view of the section in question. A similar view was taken in Babu Ram V/s. Banke Bihari Lal (1925) I.L.R. 47 All. 665. The decision itself was not on the question of an order setting aside an ex parte decree; nevertheless a previous decision of the Allahabad High Court upon that very point was cited by the learned Judges with approval. It is true that there was an earlier decision of the Allahabad High Court in Nand Ram V/s. Bhopal Singh (1912) I.L.R. 34 All. 592, where a contrary view appears to have been expressed, but that again was a case under Section 115, and not a case where the propriety of an order setting aside an ex parte decree was sought to be challenged in an appeal from the decree itself. IN our opinion, in the absence of any direct decision of this Court upon the matter we should follow the decisions in Sundar Singh V/s. Nighaiya and Babu Ram V/s. Banke Bihari Lal. IN that view of the case the District Judge had no power to question the propriety of the order of the lower Court setting aside the ex parte decree, and therefore, his decision cannot be supported. The result must be that the decree of the lower appellate Court must be set aside and the appeal remanded to it for decision on the merits. The appellant must have his costs of the appeal in this Court. The other costs will be in the discretion of the District Court.