Mohanlal Agarwalla vs Lachman Haluoi and another

C.S. Nayudu, J.—The point that arises for consideration in this revision petition is whether when a suit is disposed of on the merits by a considered judgment dealing with all the points and giving findings thereon, the same could be made the subject of an application for setting aside the decree under O. 9 R. 13 read with O. 17 R. 2 of the Code of Civil Procedure, or whether the judgment and decree could only be questioned by way of an appeal.

The facts may be briefly noticed. The plaintiff brought a suit in respect of certain immovable property. The suit was, after taking evidence from both sides, dismissed by the trial court, namely, the Court of the Munsif, Dhubri. The matter was taken up in appeal by the plaintiff to the appellate court, which court remanded the matter to the trial Court for fresh disposal after taking further evidence adduced by both sides. The case was received back by the Munsiff Dhubri together with the records on 2-8-61, and the suit was posted for further hearing on a number of dates between 2-8-61 and 9-8-62 when it was finally disposed of, the suit being decreed. It would appear that except for entering appearance soon after the case was remanded to the trial court, the defendants would appear to have taken no action or steps in the case, and finally on 9-8-62, the learned Munsif disposed of the case on the merits after carefully considering all the evidence on record and after further examining the plaintiff. A lengthy judgment dealing with the contentions of parties, was written by the learned Munsif, who gave findings on all the issues arising in the case.

It is clear from the record that the stage at which the suit was decreed was the stage contemplated under Order 17 Rule 3 of the Code of Civil Procedure, the suit having been set down for further evidence and for disposal on the merits. If the defendants omitted to produce any evidence and take part in the proceedings, their default would not make any difference to the nature of the disposal of the suit which undoubtedly was a disposal on the merits under Order 17 Rule 3. Such being the case, the remedy of the defendants against this decree was only by way of an appeal to the appellate court and not by way of an application to set aside the decree either under Order 9 Rule 13 or under Order 9 Rule 13 read with Order 17 Rule 2 of the Code of Civil Procedure. The stage for filing such an application had passed once the stage, indicated by Order 17 Rule 3 , had been reached and action taken under that rule for a disposal of the suit on its merits and in the light of the evidence available on the record. It is clear, therefore, that the order of the court below purporting to set aside the decree, as if it were an ex parte decree to which Order 9 Rule 13 CPC applied is clearly without jurisdiction, and, therefore, unsustainable in law.

This revision petition is accordingly allowed. The order of the court below, setting aside the decree passed on 9-8-62 in this case, is set aside, and the decree restored. But, in the entire circumstances of the case, I make no order as to costs.