MAN SINGH Vs. SANGHI DAL CHAND

JUDGEMENT

(1.) This is a first appeal from an order passed by the Subordinate Judge of Cawnpore rejecting the application of the appellants for an order to set aside an ex parte decree passed in a suit brought by the plaintiff-respondents against three defendants, including the appellants, who were defendants 2 and 3. The first defendant was the Collector of Cawnpore. The suit was one for recovery of Rs. 30,500 on foot of a receipt executed by Kailash Nath, whose estate was, on the date of the suit, represented by the Court of Wards. The defence put forward on behalf of the appellants, defendants 2 and 3, was that the money to which the claim related belonged to the defendants, who were entitled to recover the same from the debtor, namely the estate of Kailash Nath. The Collector did not deny the liability of Kailash Nath, but pleaded that themoney due from the estate of Kailash Nath belonged to defendants 2 and 3. The pleadings clearly show that the real controversy was whether the sum admittedly due from the estate of Kailash Nath is recoverable by the plaintiff or by defendants 2 and 3. The suit was fixed for hearing on 17 October 1932, when defendants 2 and 3 were found to be absent. Their pleader stated that he had no instructions. The learned Subordinate Judge passed an ex parte decree against defendant 1. The appellants subsequently made an application under Order 9, Rule 13, Civil P.C., for an order to set aside the ex parte decree, alleging that they had been prevented by sufficient cause from appearing on the date fixed for hearing. One of them was alleged to have been at Sagar in C.P., where he fell ill. The other, who had come to Cawnpore to look after this case, gofc an attack of fever and could not attend the Court on the date fixed for hearing, Affidavits were filed in support of the defendants allegations, which were further supported by certificates of a medical practitioner. The learned Subordinate Judge dismissed the application. We feel constrained to say that the order of the learned Subordinate Judge proceeds on very superficial grounds. Referring to the medical certificates he observed: We all know the real value of such medical certificates and I need not waste public time by making any serious comments.

(2.) We do not think that the learned Subordinate Judge was justified in disbelieving the appellants allegations contained in their affidavits and in totally discarding the medical certificates in the manner he has done. Though there is a counter-affidavit filed on behalf of the plaintiff swearing to the negative, viz., that the appellants were not ill, we think that in the absence of any clear motive for the defendants to have deliberately absented themselves from the Court on the day fixed for hearing of the case, we should, for all purposes of the case, hold that the appellants made out a sufficient cause for their non-appearance on the date fixed for hearing of the case. The learned advocate for the plaintiff-respondent strenuously contended that, in so far as the decree is against defendant 1 only, the appellants, against whom no relief has been granted, were not competent to make an application under Order 9, Rule 13, Civil P.C. The contention is so far correct that the decree, on the face of it, does not, in terms, grant any relief against the appellants. It merely entitled the plaintiff to recover the sum claimed from defendant 1. But there can be no doubt that the decree proceeds on the assumption that the defence put forward by the appellants was incorrect. As already stated, the sole question in the case was whether the sum, which was payable by the estate of Kailash Nath, is due to the plaintiff or the defendants. In as much as the decree entitles the plaintiff to recover that sum, the defence of the appellants was overruled by the judgment in pursuance of which the ex parte decree was drawn up. "Decree" is defined in Section 2(2), Civil P.C., as: the formal expression of an adjudication, which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

(3.) There can be no doubt that among other questions the decree determines the right of the plaintiff to recover the sum claimed as against defendants 2 and 3. It clearly implies an adjudication that the plaintiff, and not defendants 2 and 3, is the real creditor in respect of the sum in question in the suit. Order 9, Rule 13, Civil P.C., provides 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.