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Madhya Pradesh High Court · body

1997 DIGILAW 281 (MP)

Narayan Singh v. Banwarilal

1997-05-08

S.S.JHA

body1997
In the present case the applicant had filed a civil suit in the trial Court which was proceeded ex parte and was dismissed. In an appeal by the plaintiff before the appellate Court the appeal was allowed and the suit was decreed. The defendants/respondent also participated in appeal which resulted into a biparte decree. After the appeal was decided the decree was sought to be executed before the Court of Ninth Civil Judge, Class II, Gwalior. An application under O. 9 R. 13 Code of Civil Procedure was filed before the executing Court. The application was dismissed on the ground that the suit has been dismissed and is not maintainable. The respondents filed a civil revision No. 1019/96 before this Court. In the civil revision the Counsel stated that he shall move an application before the Court which passed the effective decree. On his statement the revision petition was dismissed and it was also ordered that the petitioner shall not be dispossessed till 29.10.1996. Thereafter an application under O.9 R. 13 Code of Civil Procedure was filed before the Court which passed the decree. The trial Court had entertained the application, stayed the execution proceedings and fixed the case for recording evidence. The Iearned counsel for the applicant submits that there is no ex parte decree. The application under O. 9 R. 13 of the Code of Civil Procedure itself is not maintainable. Learned counsel further submitted the ex parte order was passed on 27.8.1991 and the application under O.9 R. 13 of the Code of Civil Procedure was filed after a lapse of 5 years. Therefore, the application ought to have been dismissed. From the facts of the case the trial Court dismissed the suit on 29.1.1993. Since the suit was dismissed, there was no occasion for defendants to move the application for setting aside the ex parte decree. when an appeal was filed which was decreed on 23.7.1996. Thus, the effective decree was passed on 23.7.1996. The respondents moved under O.9 R. 13 of the Code of Civil Procedure before the trial Court but that application was rejected and after revision by the High Court the present application was filed. I only deal with the question of maintainability of this application. Under the Code of Civil Procedure there is no provision for determining this' question. The respondents moved under O.9 R. 13 of the Code of Civil Procedure before the trial Court but that application was rejected and after revision by the High Court the present application was filed. I only deal with the question of maintainability of this application. Under the Code of Civil Procedure there is no provision for determining this' question. When a suit in a ex parte proceeding is dismissed and in appeal appellate Court reversed the findings and allowed the appeal after hearing both the parties and decreed the suit. The decree by a trial Court merged in the appellate decree. The decree is not ex parte. Therefore, the provisions of O. 9 R. 13 of the Code of Civil Procedure will not be applicable to such a decree. However, in this case the defendants cannot be deprived of his right to demonstrate sufficient cause for his non-appearance on a particular date. He cannot be left remediless. The appellate Court which passed a decree had an ample power to consider this question u/s 151 of the Code of Civil Procedure and if it comes to the conclusion that in the suit ex parte proceedings against the defendant were proceeded improperly then the appellate Court has ample power to set aside the decree and provide an opportunity to the defendant. The inherent powers u/s 151 of the Code of Civil Procedure are designed to meet the ends of justice and to prevent the abuse of the process of the Court. There is no provision in the Code of Civil Procedure which applies to a case like this. The Court has, therefore, inherent power's to set right the wrong done to the defendant. This question was considered by this Court in the case of Abdul Rashid Khan v. Kartarsingh and another reported in 1971 JLJ-SN 21. Shri A.P. Sen (as he then was) held as under: "It would be a travesty of justice if the decree in appeal passed in a suit which was improperly proceeded ex parte against the defendants was allowed to stand. The inherent powers under Section 151 of the Code of Civil Procedure are designed to meet the ends of justice and to prevent abuse of the process of the Court. There is no provision in the Code of Civil Procedure which applied to a case like this. The inherent powers under Section 151 of the Code of Civil Procedure are designed to meet the ends of justice and to prevent abuse of the process of the Court. There is no provision in the Code of Civil Procedure which applied to a case like this. The Court has, therefore, to fall back on its inherent powers to set right the wrong done to the defendant." From the aforesaid discussion it is apparent that the Court which passed the decree has jurisdiction to entertain a dispute under provision of Section 151. The appellate Court shall examine whether the defendants were prevented from sufficient cause from appearing when the suit was called for hearing. The appellate Court shall also decide the question of limitation and determine whether ex parte proceedings were proper or improper. If it finds that the order proceeding ex parte was proper it shall not interfere with the judgment and decree. But if the Court comes to the conclusion that the order proceeding ex parte was improper then it shall pass an order according to law. The appellate Court shall decide the application u/s 151 of the Code of Civil Procedure. In the opinion of this Court the Court has not committed any error in fixing the case for evidence for determining the dispute. The revision fails and is dismissed.