- (1.) This appeal arises out of an order of remand in an appeal from an ex parte decree. Though some of the other defendants have applied under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside the ex parte decree, the first defendant carried an appeal therefrom and urged, inter alia, that the writ of summons had not been served on the first defendant and that the suit could not have been set down for ex parte hearing. The plaintiffs, who are the appellants herein, insist that there is a distinction between Order IX Rule 13 of the Code and Section 96 thereof and, qualitatively, the assessment made under either provision is distinct and may not be comparable. According to the plaintiffs, it is open to a defendant suffering an ex parte decree to either apply for setting aside thereof under Order IX Rule 13 of the Code or prefer an appeal therefrom under Section 96 of the Code or carry both a setting aside application and an appeal therefrom, subject to the caveat in the Explanation to Order IX Rule 13 of the Code. The plaintiffs suggest that in an appeal from an ex parte decree, the appealing defendant has to primarily demonstrate that the decree could not have been passed, or was erroneously passed, on the material relied upon by the plaintiff; that in such appeal it may not be open to the defendant to urge grounds that the summons in the suit had not been duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing.
(2.) The first defendant refers to Section 105 of the Code that permits, in course of an appeal from a decree, "any error, defect or irregularity in any order, affecting the decision of the case" to be challenged upon indicating the same in the memorandum of appeal. The first defendant refers to Rules 17 and 19 of Order V of the Code and suggests that the error or irregularity in setting the suit down for ex parte hearing is evident from the face of the records. The first defendant places the order-sheet pertaining to the suit for eviction of the defendants as licencees under a partnership firm in which the plaintiffs are partners. The first defendant insinuates that in the suit having been lodged in February, 2010 and decreed ex parte within three months by brushing aside the first defendant's repeated requests to be served copies of the plaint, the trial court acted illegally and with material irregularity that was appropriately dealt with by the appellate court in the order of remand upon the decree being set aside.
(3.) The order-sheet relating to Title Suit No. 48 of 2010 lodged before the 3rd Court of Civil Judge (Jr Division), Howrah, makes interesting reading, particularly as the ex parte decree was passed within three months, to the day, of the institution of the suit. The plaint was received by the court on February 17, 2010, the court fees and process fees were found to have been paid and directions were issued by the first order for issuance of summons through court as well as by registered post. The matter was adjourned till March 24, 2010 for service return and postal acknowledgement. The suit was taken up next on March 24, 2010 when the service of the summons on the defendants was found to be in order and, upon the defendants being absent, it was set down for ex parte hearing. The order needs to be noticed in its entirety: "Order dated 24.03.10. Pltff. file hazira. S/R is returned after service. S/R kept with the record. Defdts. are absent without step. So the suit will be proceed exparte hearing. To 08.4.10 for exparte hearing.";