The Judgment of the Court was as follows:—
B.B Ghose, J.:— This appeal arises from an order refusing to set aside an ex parte decree passed in a suit on a mortgage brought on the 20th of December 1924. After the suit had been pending for sometime, an application was made by the Defendants on the 4th of November 1925 for further time. The application was ostensibly on the ground of illness of witnesses and so forth. That application was rejected. The Plaintiff also filed an application which was also rejected. Upon that the Defendants' pleader alleged that he had no further instructions and retired from the case. The Plaintiff proceeded to prove his case ex parte and obtained a decree. The present application was made on the 2nd of December 1925 for setting aside the ex parte decree. The Subordinate Judge has stated his grounds for rejecting the application. From that order, the present appeal has been presented.
A preliminary objection has been taken that no appeal lies. The ground is that the application under Or. 9, r. 13 of the Code of Civil Procedure was dismissed on the 19th May 1926. The final decree in the mortgage suit was made on the 28th of June 1926. It is contended on the authority of the case of Jogendra Narayan Das v. Satyendra Chandra Ghose Moulik that the appeal is incompetent because of the passing of the final decree in the mortgage suit. With great respect I am unable to agree with the reasons of the judgment. An appeal is allowed against an order under Or. 9, r. 13, C.P.C, by Or. 43. There is no provision in the Code which debars an appeal from such an order unless there is an appeal from the ex parte decree itself; and surely there is no basis for the argument that an appeal from the order is incompetent if there is no appeal from the final decree. The reported case appears to be based on certain cases in this Court where it has been held that an appeal against the preliminary decree is not competent, if before the appeal is filed, the final decree in the case has been made and there is no appeal from the final decree. In my opinion, these decisions based upon the provisions of the Code of Civil Procedure of 1882 cannot be sustained upon proper grounds. The Code of 1882 allowed a preliminary decree to be questioned on an appeal from the final decree and the basis of the decisions under the Code of 1882 was that after the final decree is passed, the preliminary decree ceases to exist and is absorbed in the final decree. The preliminary decree having no separate existence, an appeal from such a decree was held to be infructuous when the final decree was made. Under the present Code, the two decrees are independent and separate. One cannot now question the validity of the preliminary decree by an appeal from the final decree. Under sec. 97 if a person aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness by his appeal from the final decree. In my opinion therefore where a preliminary decree has an independent existence and a person aggrieved by it is bound to appeal from it, that right cannot be taken away by a final decree being passed either before or after the person appeals from the preliminary decree. If a proper case had arisen before us, we would have referred this question to the Full Bench for the point being settled once for all, as we think that the view taken by the Madras and Allahabad High Courts is the correct view to take under the present Code and that the view taken in a series of cases in our Court cannot be sustained upon principle. But this is not such a case in which a reference may be made. In the present case the question is with regard to an appeal from an order refusing to set aside an ex parte decree. In deciding this matter the question of the merits of the case does not arise for consideration; and what does it matter whether a final decree has been made in such a case or not? If the order refusing to set aside an ex parte decree is reversed by this Court on appeal the preliminary decree as well as the final decree being all dependent decrees must all fall to the ground. This principle follows from what was observed by Lord Justice Turner in the Privy Council case, Shyama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury . This would be a question of dependent decrees. We need not differ from the actual decision in the case of Jogendra Narayan Das v. Satyendra Chandra Ghose Moulik , because there the appeal was against an order dismissing an application for setting aside an ex parte decree for default, and also an application for setting aside the dismissal for default was made which was again dismissed. It might very well reasonably be held in that case that the appeal from those two orders was not at all sustainable. We, therefore, think that the preliminary objection taken in this case is not sound.
But coming to the merits, however, we find that the Appellants have got no case. The grounds which the Appellants stated for having the ex parte decree set aside were not believed by the Subordinate Judge, and in the petition which they presented they stated that the Moharir of their pleader assured them that there would be an adjournment. No person is entitled to act upon the assurance of his pleader's Moharir that a particular case should not be taken up on the date fixed. The other reason given by the Appellants does not also commend itself to us. They said that they called for certain records which did not arrive on the date fixed. But they did not file certified copies of the records which would have proved what they wanted to prove by the order-sheet of the case, that the Defendant was in hajot on a particular date. It seems to us that the Defendants were only trying to delay matters and were not desirous to have the case tried.
On these grounds we dismiss the appeal with costs, the hearing-fee being assessed at three gold mohurs.
Cammiade, J.:— I agree.
C.C