Ram Narain vs Gobind Singh and Others

Ashok Bhan, J.—This revision petition has been preferred by the vendee-defendant (hereinafter referred to as the petitioner). The facts giving rise to the revision petition are as under :-

Gobind Singh plaintiff-respondent (hereinafter referred to as the plaintiff filed a suit for possession by way of pre-emption of the land measuring 17 Kanals 6 Marias sold on 13-5-1985, for a sum of Rs. 37,500/-. The vendee-petitioner was proceeded ex parte and finally an ex parte decree was passed in favour of the plaintiff-respondent and against the vendee-petitioner on 14-6-1987.

Appellate Authority dismissed the appeal being not maintainable and pre-mature on the ground that the vendee-petitioner should have filed an application for setting aside the ex parte order before the Court of original jurisdiction that the appeal was not maintainable as the vendee-petitioner had come to the Court in appeal seeking to set aside the ex parte order on the ground that there was a default, irregularity and error in effecting service on the vendee-petitioner. Aggrieved against the said order, the petitioner has come in revision to this Court.

Learned counsel appearing for the vendee-petitioner has argued that the first appellate Court has acted illegally and without jurisdiction in holding that the appeal filed before the lower appellate Court was not maintainable; that a person against whom an ex parte decree is passed has two remedies open to him, that is either to file an application for setting aside the ex parte decree under Order 9 rule 13 or file an appeal u/s 96(2) of the CPC (hereinafter referred to as the Code) and challenge the order of the trial Court on merits of the case; that the vendee-petitioner had challenged the ex parte decree on merits by way of filing an appeal before the District Judge and in view of this, the appeal filed by the vendee-petitioner before the District Judge, could not be dismissed being not maintainable. Section 96(2) of the Code reads as under : -

"96. Appeal from original decree-

(1) xx xx xx (2) An appeal may lie from an original decree passed ex parse".

Learned counsel appearing for the respondents has conceded in principle that a person against whom an ex parte decree has been passed can either file an application for setting aside the ex parte order under Order 9 rule 13 or file an appeal u/s 96(2) of the Code on merits, but contended that the appeal filed u/s 96(2), against an ex parte decree cannot be converted into proceedings for setting aside the ex parte decree and then the appeal could only be argued and decided on the merits of the case ; he further argued that in this particular case, the District Judge had proceeded on the basis that the vendee had come to the appellate Court only on the ground of default and irregularity in effecting service upon him before proceeding ex parte which resulted into an ex parte decree and that the order of the appellate authority is in accordance with the law laid down by this Court in Smt. Maya Devi and Ors. v. Mehria Gram Dall Mill Hissar (1987) 91 P. L. R. 647, where a learned Single Judge of this Court held as under :-

"In fact it is candidly admitted that after the ex parte decree dated 21-3-1986 no application under Order IX, Rule 13 of the Code was moved by any of the defendants before the trial Court for setting aside the same. Sub-section (2) of Section 96 no doubt provides for an appeal against an ex parte decree but in such an appeal an error, defect or irregularity which has affected the decision of the case can be challenged. Such an appeal cannot be converted into proceedings for setting aside the ex parte decree The Code prescribes the remedy for the setting aside of the ex parte decree under Order IX, Rule 13 and when a plea under the said provision fails an appeal is specifically provided under Clause (d) of Rule 1 of Order XLIII of the Code against an order of the trial Court refusing to set aside the ex parte decree. It is by now well settled that when a particular remedy is provided for setting aside an ex parte decree and there is by way of appeal, another special remedy against an order refusing to set aside such a decree, these remedies alone and none other can be taken resort to. Therefore, when these remedies have not been availed of in an appeal u/s 96(2) or in the second appeal u/s 100 of the Code, no ground can be entertained that the ex parte proceedings were wrongly taken against the appellant which resulted in passing of the ex parte decree. A similar view was taken by, a Division Bench in Nagar Palika Nigam, Gwalior Vs. Motilal Munnalal, . Therefore, both on facts and law. I find no substance in the submission of the learned counsel for the appellants that the order proceeding ex parte against them was not lawful or that the ex parte decree against them was wrongly passed. I, therefore, reject this contention."

The above noted submission of the learned counsel has narrowed down the controversy between the parties to a great extent. The only point to be seen is as to whether the vendee petitioner had challenged the judgment of the trial Court only for setting aside the ex parte decree there being a default in service or on the merits as well. I have perused the grounds taken by the vendee in the grounds of appeal before the lower appellate Court. In the grounds of appeal, the vendee-petitioner had challenged the order of the trial Court on merits as well. He has challenged all the findings which have been recorded by the trial Court. In addition thereto, he has also challenged that the ex parte order be also set aside. In Smt. Maya Devi''s case (supra), the learned Single Judge has held that appeal u/s 96(2) of the Code, is maintainable but in the said appeal, an error, defect or irregularity which has affected the decision of the case can be challenged but such an appeal cannot be converted into proceedings for setting aside the ex parte decree. The first appellate Court clearly fell into an error in not deciding the appeal on merits. Of course, in view of the decision in Maya Devi''s case (supra), the first appellate Court should have restricted itself to the merits of the controversy and refused to entertain any ground regarding ex parte proceedings/decree having been passed taken against the vendee-petitioner.

Accordingly, the order of the first appellate Court is set aside and the case is remanded to the first appellate Court to decide the appeal on merits of the controversy without adverting itself to the plea that the vendee-petitioner had been wrongly proceeded ex parte which resulted into passing of the ex parte decree. Before the first appellate Court, the vendee-petitioner shall confine himself to the challenge regarding errors in the judgment of the trial court only. No costs.

The parties through their counsel are directed to appear before the first appellate Court on 23-3-1992.