JUDGMENT : TUDBALL, J. 1. One Mul Chand instituted a civil suit to recover rent against one Babu Ram (the present applicant) and one Chhakki Lal. He declared the latter to be a co-lessor with himself but unwilling to use and for that reason made him a pro forma defendant. 2. The suit apparently was a piece of fraud and collusion on the part of Mul Chand and Babu Ram to try and manufacture evidence to establish Mul Chand's title to the property. The suit was instituted on May 18th, 1910. Babu Ram filed a written statement, and on the 10th June, 1910, the suit was decreed as against him but dismissed as against Chakki Lal who, however, did not appear, not having been served with notice. On 16th June 1910, he applied to the Munsiff to have the decree set aside and the case reheard under Order 9 Rule 13 Criminal Procedure Code. This prayer was granted on 25th June 1910 and finally on the re-hearing the suit was dismissed. 3. Then the Munsiff took proceedings under section 476, Criminial Procedure Code, against Babu Ram. In the course of these proceedings he put Babu Ram on oath. As a result, the latter was put upon his trial on five charges under sections 196 and 193, Penal Code, 1860. It is necessary to note that in the course of the rehearing of the suit a Kirayanamah was produced and used. The five charges were as follows:— (1) A charge under section 196, Penal Code, 1860, in respect to the Kiraynamak, The date of the offence being 14th July, 1910 i.e., after the granting of the re-hearing, (2) a charge under section 193, Penal Code, 1860 in respect to the evidence given by Babu Ram on 14th July 1910 in the course of the re-hearing. (3) and (4) These were charges of perjury in respect to statements made by the applicant during the proceedings taken under section 476, Criminal Procedure Code, and (5) a charge under section 193, Penal Code, 1860, in respect to the false statements, contained in the written statement filed by him on 10th June 1910, i.e., at the first trial of the suit. 4. 4. The Magistrate tried Babu Ram on all five charges at one and same trial, convicted him on all five charges and sentenced him to one year's rigorous imprisonment, and a fine as a combined punishment for all his misdeeds. On appeal the Sessions Judge set aside the convictions on charges (3 and 4) which—clearly would not stand for one moment. He, however, maintained the conviction on the three remaining charges and also the sentence. 5. In respect to charge No. 1 and 2 ft is urged that they must fall to the ground as the false statements were not made in the course of a judicial proceeding. This plea must prevail. The first trial of civil suit ended in a decree against Babu Ram but as against Chakki Lal the suit stood dismissed. 6. Order 9, Rule 13, Civil Procedure Code allows a defendant against whom a decree has been passed ex-parte to apply to the Court on certain grounds to set aside that decree and re-hear the suit. But in the present instance the suit as against Chakki Lal was dismissed and he therefore could not apply under this order and rule nor could the Munsiff set aside his decree and grant a re-hearing on Chakki Lal's application. The Munsiffs proceedings therefore were ultra vires and illegal and therefore Babu Ram cannot be held to have committed perjury in the course of a judicial proceeding. It was not a proceeding in which evidence could be legally taken. This is the principle which was applied in the case Queen Empress v. Makhni, [1890] A.W.N., p. 100 and also in King-Emperor v. Abdul Rahman, [1910] I.L.R., 32 All., 30. 7. The convictions on these charges must therefore fall to the ground. There is however no flaw in respect to the trial on the 5th charge that has been pressed before me. It is open to question whether or not section 235, Criminal Procedure Code, can apply to the trial of the applicant on the five charges at one and the same trial. If section 235 does not cover the circumstances of this trial, the latter must be an illegality but the point has not been pressed nor has it been raised in the grounds entered in the application and I therefore do not decide it. 8. If section 235 does not cover the circumstances of this trial, the latter must be an illegality but the point has not been pressed nor has it been raised in the grounds entered in the application and I therefore do not decide it. 8. On the 5th charge, the facts held proved by the courts below constitute the offence under section 193, Penal Code, 1860 of which the applicant has been found guilty. The sentence of imprisonment for one year is a proper and appropriate sentence. The fine of Rs. 1,000 seems to be somewhat unnecessarily severe. I therefore grant the application to this extent that I set aside the convictions on the first two charges, maintain that on the fifth charge but reduce the sentence of Rs. 1,006 fine to a fine of Rs. 500. The sentence of imprisonment will stand good and also, that ordered in default of payment of fine. The balance of the fine, if paid, will be refunded.