Dhani Ram vs Anantu and others

The respondents (defendants) were set exparte on 5.2.1992 in the petitioner's suit which was later decreed in exparte on 30.5.1995. They filed an

application before the trial court and instead of seeking setting aside of the Exparte decree they sought recall of order dated 5.3.1992 whereby

exparte proceedings were taken against them. The trial court allowed this application vide the impugned order dated 4.9.1993 on the ground that

since the litigation related to land, they would be prejudiced if their application was not accepted. The court thereafter consigned the application to

records and imposed costs of Rs. 200/ on the defendants.

Petitioner has questioned this order on the ground that it was incompetent and lacked in jurisdiction. His case is that the trial court could not have

set aside an interim order dated 5.3.1992 and allowed the exparte decree to remain in tact and in operation.

Learned counsel for the respondents, Mr. Basotra, firstly took a preliminary objection that this revision petition ,was not maintainable as the order

impugned was appealable under Order XLIII Rule 1(d) C.P.C.

I propose to get rid of the preliminary objection first and for this the relevant provision would have to be extracted. It reads thus :

Appeals from orders. An appeal shall lie from the following orders under the provisions of section 104, namely :

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex pate;

A persual of the provision shows that the submission of the counsel suffers from gross misconception This provision, as is evident and obvious,

deal with the rejection of an application made under Order IX rule 13 for setting aside an exparte decree and not an order rejecting an application

for setting aside exparte proceedings which falls under rule 7 of Order IX. Therefore, it cannot be said or held that the impugned order passed by

the trial court was appealable under Order XLIII Rule 1(d) to affect the maintainability of this petition.

That apart, the impugned order appears to be patiently illegal on the fact of it and suffers from gross nonapplication of mind by the trial court. It is

not understandable how the trial court had chosen to deal with the application for setting aside the interim order when admittedly exparte decree

had been passed in the suit and when he was seized of the record of the suit. He had put the cart before the horse while allowing the exparte

decree to operate any by setting aside an interim order to reopen the proceedings of the suit. The approach and action is unknown to the realm of

civil law.

It may be true that considerations for setting aside an exparte decree and for setting aside the exparte proceedings, are identical. But, that does not

mean or suggest that the trial court can recall the order taking exparte proceedings and allow the exparte decree to remain in force. Both situations

are covered by separate rules and provisions and call for a consideration in the light of such provisions. Once an exparte decree remains intact and

untouched, it would operate and generate its own consequences. To set aside an interim order and at the same time allowns the decree to remain

in force portrays the ignorance of the trial court with the elementary principles of Civil Procedure Code. Such an action would be patently illegal

and improper.

In the result the impugned order dated 4.9.1993 cannot be allowed to stand and is set aside. Record be returned to the court concerned.