Chunni Lal vs Chamman Lal

Oldfield, J.—The plaintiff instituted this suit in the Court of the Munsif of Etawah, and the defendant was called upon by the Munsif to answer certain interrogatories, and, having failed to comply with the order, the Munsif proceeded, u/s 136, Civil Procedure Code, to strike out his defence and disposed of the suit as if he had not appeared and answered.

The defendant appealed in the Subordinate Judge''s Court, and the Subordinate Judge has set aside the decree, and remanded the suit for fresh trial.

The plea in appeal before us is that there is no appeal, inasmuch as the decree of the Munsif must be treated as an ex-parte decree. It is true that the majority of this Court (Oldfield and Brodhurst, JJ., dissenting) have held that no appeal will lie from an ex-parte decree--Lal Singh v. Kunjan ILR All. 387. We are of opinion, however, that a decree made in a suit, where the provisions of Section 136 of the CPC have been put in force, cannot be treated as an ex-parte decree in respect of the remedy by appeal. In the first place, as a matter of fact, the defendant did appear to answer to the suit, and, therefore, there was no ex-parte decree in the strict sense of the word and next, unless allowed an appeal, he would have no remedy, for the remedy by application to the Court that makes an ex-parte decree under 9.108 is inapplicable to a case dealt with u/s 136, as the terms of Section 108 show. Under that section, a defendant, in order to succeed, has to satisfy the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. It contemplates cases of ex-parte proceedings strictly and properly so, and not such as are made u/s 136. We dismiss the appeal with costs.