Nathuni Singh and Others vs Khub Lal Singh and Others

Madan, J.—This is an appeal against an order dismissing for default an application under Order 9, Rule 13, for setting aside an ex parte decree. The appellants were defendants in a mortgage suit in the course of which, on 22nd August 1934, a petition for a month''s time to compromise was filed on behalf of both the parties. This petition was rejected summarily by the Subordinate Judge and the plaintiffs then declared themselves to be ready to proceed with the suit, while the appellants were not ready. The Subordinate Judge then heard the plaintiffs and decreed the suit ex parte the next day. The application for setting aside the decree was filed within time on 19th September, and on 18th March, after some adjournments, the appellants were ready with their witnesses while the opposite party applied for time. 30th March was fixed, and on that date a medical certificate was filed to the effect that Kailu Singh, who was one of the appellants and was looking after the appellants'' case, was suffering from dyspepsia and could not attend the Court. The learned Subordinate Judge summarily rejected this petition and dismissed the application, and the appellants have now come before this Court.

In this case there are considerations favourable to the appellants, as the order-sheet shows that the appellants were ready with their witnesses on the previous date, which makes it less easy to hold that their application for time on 30th March was mala fide or to justify the summary rejection of the medical certificate which was granted by a practitioner under the employment of the District Board. Also it appears that the appellants had reasonable ground for asking for the restoration of the suit, namely that a petition for time to compromise filed on behalf of both the parties was refused. In the circumstances we think it proper to allow this appeal, as well as the application under Order 9, Rule 13, and to set aside the ex parte decree in its entirety: parties will bear their own costs in this Court.

Mohamad Noor, J.

I agree.