Kaul and Misra, JJ.:— This appeal arises out of proceedings for preparation of a final decree in a suit for accounting.
The plaintiff-appellant Maulana Jamal Uddin Abdul Wahab obtained a preliminary decree on 31st May 1941 against the defendants Dr. Abdul Ali and Nawab Shamshul Hasan. His application for preparation of a final decree was rejected on 13th May 1944 for default of his appearance on that date and his subsequent application for restoration was rejected on 9th October 1944 on merits. The plaintiff has come up in appeal against the order of 9th October, 1944 under Order XLIII rule 1(c) Civil Procedure Code.
The appellant challenges the procedure adopted by the learned Judge of the court below. His contention is that after the passing of a preliminary decree the refusal to prepare a final decree for default of appearance was unjustified and that the plaintiff's presence on 13th May, 1944, was not essential. It is claimed therefore, that on plaintiff's application for restoration the lower court ought to have resumed the proceedings and proceeded to prepare a final decree. The contention is supported by authority and is sound in principle. Order IX rules 8 and 9 are not intended to apply to proceedings subsequent to the passing of a preliminary decree. In Lackmi Narain Marwari v. Bahnukund Marwari Lord Phillimore who delivered the judgment of their Lordships' Board observed that if a decree has once been made in a suit, the suit cannot be dismissed unless the decree, is reversed on appeal. As observed by the Judicial Committee, the parties acquire rights and incur liabilities on the passing of a preliminary decree and such rights and liabilities cannot be displaced unless the decree is varied or set aside. There is no doubt that after the passing of such a decree any party could apply to have it enforced. The preparation of a final decree is thus an enforcement of the preliminary decree and the proceedings cannot be brought to a close merely because the plaintiff absents himself. The refusal of the lower court to revive the proceedings of preparation of the final decree is, therefore, obviously wrong. There is the further consideration that the lower court wrongly assessed the value of the affidavit which accompanied the application for restoration. The deponent averred in the affidavit that the plaintiff's pairokar was unable to reach court on account of illness and that the plaintiff's counsel from Lucknow failed to reach Bahraich on account of restrictions then imposed by the railway on journeys to Bahraich. As held in Shib Sahai v. Tika it is wrong to say that an affidavit is no evidence of the facts alleged therein merely because there had been a verbal denial thereof by the opposite party without any attempt to controvert it by a counter-affidavit or without asking for the attendance of the party swearing the affidavit for the purpose of cross-examination. The order of the lower court seems to indicate, that it considered it incumbent upon the person swearing the affidavit to go into the witness-box even though no request to cross-examine the deponent was made by the other side. This is not correct.
We ought to mention that at the outset a preliminary objection was taken on behalf of the respondent to the maintainability of this appeal under Order XLIII rule 1, clause (c), Civil Procedure Code. It was urged that order against which the appellant has come up is not an application for restoration of a suit against which the law permits an appeal but only against an order on an application for restoration of proceedings for preparation of a final decree. We have not thought fit to go fully into this question because, in our opinion, the decision against which the appellant has come up is a decision of a case and since there is clearly an irregularity in the exercise of jurisdiction, the plaintiff can in any event invoke the aid of section 115 Civil Procedure Code.
We allow the appeal, set aside the order dated 9th October 1944, and direct that proceedings for preparation of the final decree be revived from the stage from which they were discontinued. The plaintiff shall get his costs of this appeal from the defendants-respondents.
Appeal allowed.