JAGADISH PRASAD KHAKALIA Vs. FIRM JESRAJ TALAKCHAND LALCHAND

JUDGEMENT

(1.) THE Appellant in this miscellaneous appeal filed an application under Order 9, Rule 13, Code of Civil Procedure, for setting aside an ex parte decree in a suit for recovery of mesne profits. There were various Defendants in the suit, the Applicant being Defendant 8 in the action. The decree itself was passed on 2 -3 -1951 and the present application to which this appeal relates was filed on 31 -3 -1951 within the period of limitation.

(2.) THE learned Subordinate Judge has rejected the application. He has held firstly that the application purports to be in Money Suit No. 15 of 1950 and not in Money Suit No. 115 of 1950 and therefore the application should be thrown out on this ground alone. The Petitioner -Appellant sought to rectify the mistake but the Court refused that permission. The second ground on which the learned Subordinate Judge has refused the application is that although notices in this case were served by 'hanging' as he calls and not personally, yet the Applicant had some knowledge of the suit and' therefore the application cannot be maintained. In our opinion, both these grounds are unsustainable.

(3.) THE second ground taken by the learned Subordinate Judge also does not appeal to us. The provisions of Order 9, Rule 13, are specific. The rule says that in any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it aside.; and if he satisfies 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, the Court shall make an order setting aside the ex parte decree.