- (1.) THIS is a revision by Govindram against the order of the District Judge, Ganganagar.
(2.) THE facts leading; to this revision are these. A suit had been filed by Govindram application against Lekhu in the court of the Civil Judge, Ganganagar, for Rs. 8000/ -. This suit was decreed Ex parte on the 17th Febr-ruary, 1950. When execution was taken out in September, 1950, the defendant opposite party, Lekhu, appeared and filed an application under O. IX R. 13 C. P. C. in the court of the Civil Judge and prayed for setting aside the Ex parte decree which had been passed against him on the ground that he had not been duty served and had no knowledge of the suit till he was served with the process in execution proceeding in September, 1950. THE Civil Judge dismissed this application and refused to restore the suit whereupon Lekhu defendant went up in appeal to the District Judge. When the matter come for hearing before that court, it was contended on behalf of the plaintiff that as the original suit, not of which this restoration proceeding arose, was valued at Rs. 8000/-, the appeal lay direct to the High Court under the Rajas-than Civil Court Ordinance (Amendment) Act (No. XIV) of 1951. THE District Judge repelled this contention and held that he had jurisdiction. He further went on to hold that there was sufficient cause for setting aside the Ex parte decree and sent the case back for retrial according to law. The plaintiff has come to this Court in revision and his contention is that the District Judge had no jurisdiction to entertain the appeal and he relies on the amended section 21 of the Rajasthan Civil Courts Ordinance (No. VII) of 1950 which reads as follows: - "save as aforesaid an appeal from a decree or order of a Civil Judge shall lie (a) to the District Judge where the value of the original suit in which, or in any proceeding arising out of which, the decree or order was made did not exceed five thousand rupees, and (b) to the High Court in any other case," The contention on behalf of the applicant is that proceedings for setting aside an ex parte decree arise out of the original suit and as the original suit was valued at Rs. 8000/-, the appeal would lie to this Court direct and not to the District Judge. Learned counsel for the respondent does not challenge the correctness of the view put forward on behalf of the applicant, and we are also of the opinion that this view is correct. The argument before the learned District Judge was based on section 141 of the Code of Civil Procedure and a decision of their Lordships of the Privy Council in Thakur Prasad vs. Fakirullah (1 ). In that case the question that arose for determination was whether, where one application for execution had been dismissed at the request of the decree-holder, another application could be filed by him, and reliance was placed on section 373 C. P. C. then in force (it is now section 11 C. P. C.) We are of opinion that Thakur Prasad's case has no relevancy so far as the present matter before us is concerned. It is very clear that if the original suit had not been filed by Govindram, these proceedings for setting aside the decree would never have arisen and, therefore, it can be safely said that these proceedings arise out of this original suit which had been filed by Govindram. Whether these proceedings are themselves in the nature of original proceedings within the meanings of section 141 is another question altogether and does not affect the interpretation of the words "proceedings arising out of" in the amended section 21 with which we are concerned. We are, therefore, of opinion that the District Judge had no jurisdiction to decide this appeal and the proper order which he should have passed was to return the appeal for presentation to the proper court. We, therefore, allow this revision, set aside the order of the District Judge and direct him to return the memorandum of appeal for presentation to the proper court. We order the opposite party to pay the costs of this court to the applicant. So far as the costs of the District Judge's court are concerned, the parties will bear them themselves. .;