Mufti Reazuddin v. Lala Maheshanand

Chatterji, J.:— In my opinion, the order of the District Judge cannot be supported. Order XLIII, rule 1(d), of the Civil Procedure Code specifically provides for an appeal against an order under Order IX, rule 13, rejecting an application to set aside a decree passed ex parte. It is, however, urged on behalf of the respondents that the provision for an appeal is limited only to the case where an application under Order IX, rule 13, is dismissed on merits. There is no reason to take such a narrow view of the clause and to read into it words which are non-existent. The present Code of Civil Procedure has made a departure in the matter of appeal in suits dismissed for default, because the definition of the word ‘decree’ excepts such dismissals of suits from its operation. If the Legislature intended to lay down that no appeal should lie from an order of dismissal of a rehearing petition for default in the presence of the opposite party, suitable provision would have been made in the Code. I am supported in this view by various decisions of the Calcutta High Court; Kumud Kumar Bose v. Hari Mohan Samadar and Pakari Pramanik v. Sarat Sundari Debya and also by a decision of this Court, in Mussammat Bodhia v. Ram Chandra Marwari.

Reference was made on behalf of the respondent to the cases of Bajit Lal Pathak v. Maharajadhiraja Sir Rameshwar Prasad Singh Bahadur and Jagdish Narain Prasad Singh v. Hari Bans Narain Singh. The last mentioned case arose out of an application to set aside an order dismissing the plaintiff's application for the restoration of a suit dismissed for default. It is settled law that an application like that cannot be one under Order IX, rule 9, and as such the order dismissing such an application cannot fall within the purview of Order XLIII, rule 1, clause (c), of the Civil Procedure Code. The case of Jagdish Narain is therefore no authority for the position taken up by the learned Advocate for the respondent. The other case relies upon Jagdish Narain's case, but in effect lays down a different rule. I do not agree with that decision, but as the case dealt with another clause of the rule no reference to the Full Bench is necessary.

I would allow the applications, set aside the orders of the District Judge and remand the cases for the rehearing of the appeals by him.

Ross, J.:— I agree.

Cases remanded.