- (1.) THIS appeal is arising out of an order passed rejecting the application under Order IX, Rule 13 of Code of Civil Procedure. The plea of the appellant herein that the decree, which has been passed on 17th May 2006 is ex-parte so far the appellant is concerned. Even on a cursory look of the fact we find that the appellant, the respondent No. 4 were the intending sellers of the property in question. So for as the respondent No. 4 is concerned, the decree is not ex-parte.
(2.) LEARNED Counsel appearing on behalf of the appellant took the plea that Mr. H. S. Mathur, learned Advocate was appearing as Counsel for the defendant/appellant in the Court below. Mr. Devendra Vajpayee, learned Advocate was engaged as Counsel by the appellant on 29th April 2005. At the time of transfer of the case from one Court to another, no notice was served upon him, which ultimately resulted in passing an ex-parte decree so far the appellant is concerned. From the order-sheet dated 8th December, 2005, it appears that Mr. H. S. Mathur endorsed in the order-sheet by saying that "i am not appearing for the party. She has taken the file from me. I withdraw". Taking such plea learned Counsel appearing for the appellant contended before this Court that there would have been notice to the appellant/defendant directly or to her Advocate Sri Devendra Vajpayee, since he had already engaged him. On 10th October, 2006 the Court had decided the matter upon holding that Mr. H. S. Mathur was the Counsel at the relevant point of time. In this context we are of the view that the provision of Order III Rule 4 (2) of the Code of Civil Procedure is necessary to be considered. One of the Division Bench of our High Court has considered the same in AIR 1982 Alld. 183, Bijli Cotton Mills (Pvt.) Ltd. v. M/s. Chhaganmal Bastimal. From the relevant part of sub-rule 2 we find that every appointment of an Advocate will be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court. Admittedly neither the appellant nor his Advocate did make any prayer within Sub-rule 2 as above. Therefore, the stand of the Counsel that the file has been taken and "i withdraw", has to be treated as an action without any leave from the Court which cannot be taken as a good ground for setting aside the impugned order or the ex- parte decree by way of an application under Order IX, Rule 13 of the Code of Civil Procedure.
(3.) HOWEVER, we have come to know that another appeal has already been filed by the appellant from the ex-parte decree itself which is appearing in the list under the heading 'first Appeal Defective' for the reasons that sufficient Court fee has not been deposited. We are of the view that no order can be passed in the said appeal arising out of order of dismissal of the application under Order IX, Rule 13 of the Code of Civil Procedure, particularly, when the remedy of preferring appeal from the ex-parte decree is already existing.;