Mathai Mathu vs Kutti Kunju Kovilammu Thanka Kovilamma

Subramania Iyer, J.—The Plaintiff in a suit for redemption of a mortgage is the Petitioner. The suit was filed in the Munsiff''s Court. Defendant l defaulted in filing the written statement after receipt of summons, on the due date. There was a decree passed in the case ex parte, on proof of the Plaintiffs'' claim by an affidavit as allowed by the law. Defendant 1 applied under Order 9, Rule 13, Code of Civil Procedure. to set aside the ex parte decree. The learned Munsiff found that there was to ground made out for non-appearance on the day on which the suit was decreed and for not filing the written statement. He nevertheless, out of sympathy to the applicant, granted the application. A revision fatten to this Court by the Plaintiff succeeded because the finding of the Munsiff against the existence of a good ground for non-appearance which ended in a decree ex parte was inconsistent with the allowing of the application. There was no scope for extending any sympathy to the Petitioner. Thereafter Defendant 1 filed an appeal to the District Judge against the decree in the case. The learned Judge allowed the appeal and remanded the case 10 the Munsiff''s Court, permitting Defendant 1 to file his written statement and directing the Munsiff to dispose of the case after receiving the written statement. This revision is directed against that order of remand.

The learned Judge recognises the fact that Defendant 1''s application to set aside the ex parte decree ended adversely to him as aforesaid. He does not consider the question as to whether the Munsiff was right in haying found against the existence of sufficient ground for non-appearance. Nevertheless the learned Judge, considering the case to be a very hard one being a suit for redemption in which Defendant 1 claims value of improvements and in view of the fact that the time asked for filing the written statement was only three days, allowed the appeal.

The learned Judge refers to the three courses open to the Defendant in a suit in which a decree ex parte has been passed. One is to file a petition to set aside the decree, second, to apply for review, and the third to appeal from the decree. After stating these three courses the learned Judge proceeds to say that the circumstance that she failed in her pursuit of the first relief will not stand in the way of her pursuing the third relief aforesaid. True, but if the ground for the relief, that is by way of appeal, is the ground on which the 1st relief was sought and was not obtained, then the result in the appeal should be the same as that in the other because, so far as the scope of the proceeding under Order 9, Rule 13, is concerned, the order passed concludes the question and is not open to the Defendant to agitate that question afresh in an appeal presented by him against the decree. Assuming it is competent for the Defendant even to challenge the correctness of the conclusion reached in the proceeding under Order 9 , Rule Rule 13, there is not, in this case, any consideration by the learned Judge of the sufficiency or otherwise of the reason alleged for the 1st Defendant''s non-appearance on the due date. The only ground relied upon by the learned Judge is the alleged hardship of the case. Hard cases, however great the hardship cannot be permitted to make bad law.

In the result the order of remand passed by the learned Judge cannot be supported which is set aside and this revision allowed with costs throughout.