- (1.) THIS revision petition is directed against the order of the Additional District Judge, Sirsa, dated January 13, 1989, whereby the appeal filed against the order of the trial Court declining to set aside the ex parte decree was dismissed as not maintainable.
(2.) THE plaintiff firm brought the suit for the recovery of Rs. 7,228. 71 on account of the business transactions of sale with the defendants. The defendants appeared and denied the claim of the plaintiff firm and rather claimed that the defendant firm was entitled to recover Rs. 8,812/ -. The parties led their evidence when during the pendency of the suit Sudershan Kumar, partner, defendant No. 2, died on February 9, 1985. The sat was decreed ex parte on May 30, 1985. Application to set aside the same was filed on July 16. 1985 on behalf of the legal representatives of the deceased defendant, Sudershan Kumar. The same was contested on behalf of the plaintiff The trial Court after framing the issues and allowing the parties to lead evidence came to the conclusion :-" it means he had no other evidence to produce and the case was decided on merits after perusing the evidence already on the file. " Consequently, the application was dismissed vide order dated August 10, l988. Appeal against the said order was dismissed as not maintainable.
(3.) THE learned counsel for the petitioners submitted that the appeal was maintainable under Order XLIII Rule 1 (d) of the Code of Civil Procedure, (hereinafter called the Code), since the application to all intents and purposes was to set aside the ex parte decree.;