PANDEY J.- - (1.) THIS is a defendants' appeal against a decree for Rs. 52,535-7-0 with proportionate costs and future interest which was passed against them on account of price of 3307 tons of coal supplied to them at Rs. 14-9-0 per ton and other incidental charges.
(2.) THE plaintiff, Rewa Coalfields Ltd., has coal mines at Burhar and Sahdol. THE defendants, who are partners of a registered firm, Chaurasia Limestone Company, Satna, manufacture lime and require coal for use in their kilns at Satna. THE plaintiff alleged that, between January 1952 and March 1953, it supplied to the defendants 3307 tons of coal at the rate of Rs. 14-9-0 per ton. Since the defendants did not pay the price, the plaintiff laid this suit claiming Rs. 52,537-14-0 including Rs. 1,505 on account of sales tax and Rs. 2,872-3-0 on account of interest. THE defendants resisted the claim inter alia on the ground that, for the supplies made between June 1951 and March 1953, they paid the entire price except Rs. 7,496-11-0 and that the supplies prior to June 1951 were made by Messrs Sood Brothers, Calcutta to whom payments for those supplies had been duly made. After issues were framed, the case came up for trial on 27th August 1954 and subsequent dates. On 12th October 1954, the defendants applied for, and obtained, an adjournment to produce additional Vidence on condition that they should pay to the plaintiff Rs. 200 as . costs. On the adjourned date, 8th November 1954, the defendants neither appeared nor paid the costs. The Judge then proceeded ex parte against them and passed on the following day an ex parte decree. Against that decree, the defendants preferred this appeal on 17th February 1955 when the prescribed period of limitation had already expired on the previous day. On 19th February 1955, they filed an application under section 5 of the Limitation Act for condonation of that one day's delay in filing the appeal on the ground that, on 16th February 1955, Ramlal, one of the defendants who was in charge of the limitation, suddenly fell ill. The learned Judicial Commissioner of Vindhya Pradesh declined to condone the delay and dismissed the appeal on 6th August 1955. Being aggrieved, the defendants applied for, and obtained, a certificate of fitness under Article 133 of the Constitution and preferred a further appeal to the Supreme Court, which sent back the case for disposal on merits after condoning the dalay in filing the first appeal. The authorised report of the judgment of the Supreme Court is Ramlal, Motilal and Chhotelal v. Rewa Coalfields Lid. (1962) 2 SC R 762. This is how the appeal is now before us. The only point urged in support of this appeal is that the Additional District Judge was not justified in refusing to adjourn the case and passing an ex parte decree. The learned counsel for the plaintiff has, however, argued that, since the defendants had made an application for setting aside the ex parte decree, it is no longer open to them to challenge the ex parte decree. In our opinion, this argument proceeds on a misconception of the true position. Section 96 (2) of the Code of Civil Procedure expressly provides for an appeal from a decree which is passed ex parte. Similarly, the aggrieved (1) (1962) 2 SC R 762. defendant is entitled to make an application under Order 9, rule 13 of the Code for setting aside the ex parte decree. The Code has given these two remedies and neither should be regarded as operating in derogation of the other. So, the Privy Council held in Radha Raman Shaha v. Pran Nath Roy I L R 28 Cal. 475 P. C and Khagendra Nath Mahata v. Pran Nath Roy I L R 29 Cal. 395 P. C. that the rejection of an application for setting aside an ex parte decree and the fact that the defendant had not appealed from the order rejecting it did not bar a challenge to the decree on another ground, namely, fraud. As pointed out by the Privy Council, a provision like Order 9, rule 13 limits the attention of the Court to specific matters. The correct position, we think, is that the appeal against an ex parte decree, in so far as it is grounded on the merits of the case, cannot be regarded as barred by reason of the fact that the defendants had earlier made an application under Order 9, rule 13 for setting aside the ex parte decree. It has accordingly been held that both the remedies, which are intended to meet different situations may be prose, cuted simultaneously and that it is permissible to set aside an ex parte decree so long as it has not merged in the decree passed in appeal: Rifazat Husain v. Mt. Bibi TawaeJ , I L R 39 All. 393. Kalimuddin Ahmmad v. Esahakuddin AIR 1924 Cal. 830=1 L R 51 Cal. 715. and Ram Rakhan v. Oovind Das AIR 1945 All. 352.
(3.) THE further question is whether, in an.appeal against an ex parte decree, the appeal Court can consider if the Court below was justified in proceeding ex parte or passing an ex parte decree. Section 105 of the Code, which prima facie applies to an order from which no appeal lies, reads: "106 (1) Save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree* is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness." It is plain that an erroneous, defective or irregular interlocutory order, which affects the decision of a case, may be challenged in the appeal against the decree, whether ex parte or otherwise, which is passed in that case. But the error, defect or irregularity must be either in law or procedure and not in matters of fact: Baldeo Lall v. Mt. Matisara Kuer. AIR 1930 Pat. 266=1 L R 9 Pat. 102. It has also been held that an improper refusal of adjournment is liable to be questioned in appeal because it affects the decision of the case within the meaning of section 105 of the Code: S, N. Mullic v. Qanga Gope AIR 1925 Pat. 534. and Jhandoo Mai and Sons v. Khalsa Singh Sahi AIR 1940 All. 305=1 L R 1940 All. 192.. It will be readily seen that the grounds on which such an order can be challenged are different from any question arising under Order 9, rule 13. An appeal against an ex parte decree under section 96 (2) of the Code cannot be allowed to be converted into a proceeding for setting aside that decree with the concomitant duty of affording to the parties an opportunity of adducing evidence for and against any ground that may be raised in support thereof under Order 9, rule 13. Nor can such an appeal be converted into an (1) I L R 28 Cal. 475 P. C. (2) IL R 29 Cal. 395 P. C. (3) I L R 39 All. 393. (4) AIR 1924 Cal. 830=1 L R 51 Cal. 715. (5) AIR 1945 All. 352. (6) AIR 1930 Pat. 266=1 L R 9 Pat. 102. (7) AIR 1925 Pat. 534. (8) AIR 1940 All. 305=1 L R 1940 All. 192. appeal under Order 43, rule 1 (d). THE reason is that, when a particular remedy is provided for setting aside an ex parte decree and there is, by way of appeal, another special temedy against an order refusing to set it aside, those remedies aid none other must be followed. This question was considered in Humi v. Aziz-ud-din I L R39 All. 143. . Rictnrd C. J- observed as follows: "In my opinion, orjce the Munsif had made the decree in the absence of the- defendants, he must be deemed to have passed his decree 'ex purte' and if the defendants complained that the decree should not have been made in their absence, their Only remedy was to apply to have it set aside and the case restored. They could, no doubt, challenge the decree by way of appeal (section 96) upon the: ground that the evidence which the plaintiff had adduced was not sufficient to justify the decree but they were not entitled in an appeal frem the decree to go into any question ctinected with their nonappearance at the hearing." The view taken in this case and certain observations made in Jonardan Dobey v. Ramdhor.e Sivgh I L R 23 Cal. 738 (F. B.) were relied upon in Raj Chandra Dhar v. Messrs. D. D. 0. C. Ray AI R 1924Bang. 137=1 L R 2 Bang.108. for holding that the question of due service of summons was the subject-matter not of an appeal from the decree but of the special proceeding under Order 9. The Allahabad case was followed in Syed Mazhar Hussain v. Sheikh Rafiq Hussein AIR 1925 Oudh 645. also and it was observed that, when a specific remedy with a particular period of limitation was provided by law, a party must avaiqf it and cannot make it a ground of appeal under the general provision granting a right of appeal from an ex parte erecree. We may also mention in this connection a later case of that Court-Oanesh Das Varma v. Han Chand,A R1934 Oudh 131 (1). (6) I L R 30 Mad. 54 (F. B.);