Wanchoo, C. J. - (1.) THIS matter has come before this Bench on a reference by a learned single Judge. He has not formulated the question to be answered by the Bench, We shall, therefore, briefly given the circumstances in which the reference has been made, and then formulate the question arising therefrom.
(2.) A suit was brought by the plaintiffs who are opposite parties in this revision against three defendants, one of whom was Mangal Singh. Summonses were issued a number of times as there was difficulty in service. One of the dates fixed was 16th of July 1951. Summons was issued to Mangal Singh defendant who is the applicant in this revision for that date. The process server reported that Mangal Singh had refused to accept the summons. Therefore, the court passed an order on the 16th of July, 1951, that there was sufficient service on Mangal Singh and that the proceedings should go on ex parte against him. After further adjournment, the case came to be fixed for the 8th of October, 1952. On this date, Mangal Singh appeared and filed an application supported by an affidavit under O. 9, r. 7 C. P. C, for setting aside the ex parte order. The matter was enquired into, and on the 30th of January, 1950, the trial court passed an order dismissing the application under O. 9, r. 7. The present revision application is against this order. When the matter came up for hearing before the learned single Judge, a preliminary objection was raised on behalf of the opposite party to the effect that the revision was incompetent in view of the decision of this Court in Purohit Swarup Narain vs. Gopi Nath (l ). In that case, it was held that were it was open to a party to raise a ground of appeal in the High Court under sec. 105 C. P. C. from the final decree or order with respect to any order which had been passed during the pendency of the case, an appeal in the case lay to. the High Court within the meaning of the words "in which no appeal lies thereto" appearing in sec. 115 C. P. C, and a revision would not be competent against such an order passed during the pendency of a suit or proceeding. The contention of the opposite party was that the order dismissing the application under O. 9, r. 7 C. P. C. could be challenged in second appeal which would eventually lie to the High Court by way of a ground under sec. 105 C. P. C. , and, therefore, the revision was incompetent. The question, therefore, may be formulated thus - "where an application under O. IX, r. 7 C. P. C. has been dismissed, is it open to the defendant to come in revision from the dismissal, or is it possible for him to take a ground under sec. 105 C. P. C. in the appeal which would finally come to the High Court from the decree passed in the suit ?" The learned single Judge has made this reference because of the doubt he entertains about the correctness of some single Judge decisions of this Court, in view of the decisions of some other High Courts. We may refer briefly to the decisions of this court at the outset, The first case is Berisal Singh vs. Pemchand (2 ). That was a second appeal before this Court in suit for possession. In that case, Bapna J. held that if the defendant did not apply for setting aside the ex parte decree, and merely filed an appeal against the decision given against him, he could not ask for a remand on the ground that the summons was not duly served, and that his grounds of appeal would be limited to the question of law and facts which were already on the record. This case not deal exactly with the point at issue before us; but it is urged that we can deduce from the observation in this case that it is not open to a party to attack an ex parte decree on the ground that the summons was not duly served if he did not proceed in the manner provided by O. IX, r. 13 C. P. C. , or the corresponding provision in the order relating to appeals, namely O. XLI, r. 21 C. P. C. The second case, which was decided by one of us, but which is not reported, is Hazarimal vs. Punamchand, decided on the 12th of November, 1954, In that case, the defendant had applied under O, IX, r. 7 C. P,c, and his application was dismissed. Thereafter, he came in revision to the High Court. A preliminary objection was raised that the revision could not be entertained in view of the decision in Purohit Swarup Narain's case (l ). But that objection was overruled on the ground that the defendant had been shut out from appearing in court, and filing his defence, and that it would not be possible for him to raise that point in second appeal when he came to the High Court. No cases were, however, cited in support of that view. The matter has now been fully argued before us, and we have given our earnest consideration to the question which we have formulated. Before we take up the actual point, we should like to point that the Privy Council and the High Courts have always taken the view that where two remedies are provided one of which is from an interlocutory order and the other from the decree that is passed in a suit - it is not necessary for a party to appeal from the interlocutory order even if an appeal is provided, and that it is sufficient for him to appeal from the decree and in such appeal he can challenge the correctness of the interlocutory order even though he had not filed any appeal from it. Reference in this connection may be made to Maharajah Moheshur Singh vs. The Bengal Government (3) where it was held as follows - "there is no regulation which requires a party to appeal from interlocutory decrees; and in an appeal to he Judicial Committee from a decree adjudicating upon the whole suit, the propriety of interlocutory decrees made in the course of the suit, though acquiesced in and submitted to at the time, may be called in question. " It was because of this decision of the Privy Council that sub-sec. (2) was introduced in sec. 105 with respect to appealable orders of remand precluding a party from challenging the correctness of the remand order if he did not appeal from it at the proper time. In Sheo Nath Singh vs. Ram Din Singh (4), a Full Bench of the Allahabad High Court held that "an order made under the Code of Civil Procedure, from which an appeal is given under sec. 588 of that Code, may be questioned under sec, 591 in an appeal from the decree in the suit if the ground of objection is stated in the memorandum of appeal although no appeal from such order has been preferred under sec. 588". Again in Sheikh Mohammad Najibuzzaman vs. Sheo Shankar (5) it was held that it was not imperative upon the suitor to appeal from every interlocutory order by which he might conceive himself aggrieved under the penalty, if he did not so do, of forfeiting for ever the benefit of the consideration of the appellate court. The general principle, therefore, seems to be that the mere fact that an appeal is provided from an interlocutory order would not prevent a party, who does not appeal from the interlocutory order, to challenge the correctness of that order in the appeal which he may finally prefer from the decree passed in the suit. Let us now turn the actual question before us keeping this principle in view. O. IX, r. 7 provides that a defendant may apply for setting aside an ex parte order, provided he appears and assigns good cause for his previous non-appearance. What is to happen however when the court refuses to set aside the ex parte order, and rejects the application under O. IX, r. 7 C. P. C. ? Can the defendant raise the point that his application under O. IX, r. 7 was wrongly rejected in an appeal that he may file from the decree passed against him. The answer to this question is to our mind clear. A ground can always be raised under sec. 105 G. P. G. challenging any order passed during the pendency of a suit provided the order affects the decision of the case on the merits. Now an order which shuts out a defendant does seem to us to affect the decision of the case on the merits, for the defendant is thereby prevented from filing a written statement, and from leading evidence to contest the suit brought against him. On further consideration, we have come to the conclusion that the remark made in Hazarimal's cases that it would not be possible for the defendant to raise this point in second appeal was not justified. So far, therefore, there is no difficulty. The defendant whose application under O. IX, r. 7 C. P. C. in dismissed, is certainly prejudiced, and if he files an appeal in case an ex parte decree is passed against him, he always challenge under sec. 105 G. P. C. the correctness of the order shutting him out from appearing on the ground that the decision of the case was affected on the merits. But a complication is introduced in a case like this by the fact that after the rejection of an application under O. IX, r. 7, an ex parte decree will follow against the defendant (we are assuming this, for if the suit is dismissed, the defendant would have no grievance at all ). Now there is a specific provision in O. IX, r. 13. for setting aside ex parte decrees. Does the existence of such a specific provision affect in any way what we have said above about the right of the defendant to raise this point under sec. 105 C. P. C. in appeal. An order under O. IX, r. 13 is appealable, and as the proceeding under O. IX, r. 13 is not during the pendency of the suit, a revision would also lie to the High Court, and the decision in Purohit Swarup Narain's case (1) would not stand in the way, as it refers only to orders during the pendency of the suit or proceeding in which they were made. An order under O. IX, r. 13 is not during the pendency of the suit, and, therefore, a revision would lie from an order in appeal passed under O. 43, r. 1 (d ). The question that is raised, therefore, is this - Supposing an ex parte decree follows the rejection of an application under O. IX, r. 7, can the defendant still challenge the order rejecting the application under O. IX, r. 7 in view of the specific provisions of O. IX, r. 13. It has been had that the rejection of an application under O. IX, r. 7 is not bar to an application under O. IX, r. 13 after the passing of an expart decree (See (a) Ashruffunnissa vs. Lehareaux (6), (b) Sankaralinga Mudali vs. Ratnasabha-pati Mudali (7), (c) Kashirao vs. Ramchandra (8) ). This seems reasonable also for if it is possible to challenge an interlocutory order from which an appeal lies, but from which no appeal is preferred, when the appeal is preferred from the decree passed finally, it is difficult to see how a party should not be able to file an application under O. IX; r. 13, simply because his application under O. IX, r. 7 is dismissed. It may be mentioned that there is no appeal from the dismissal of an application under O. IX, r. 7 C. P. C. , though there is an appeal provided from an order under O. IX, r. 13 C. P. C. Therefore, whatever may be the result of an application under O. IX, r. 13 in the trial court, the party would be able to take the order under O. IX, r. 7 indirectly to the appellate court be making an application under O. IX, r. 13 C. P. C. Therefore, the defendant, whose application has been dismissed under O. IX, r. 7, has two remedies open to him when an ex parte decree is passed against him. He may either apply under O. IX, r. 13, in which case he can go in appeal, and, thereafter in a proper case in revision to the High Court, or he may file an appeal from the ex parte decree without filing an application under O. IX, r. 13 G. P. C.
(3.) THE question then arises whether in such an appeal from the decree, the defendant can dispute the correctness of the ex parte order on the grounds mentioned in O. IX, r. 13 when he has not made an application under that Order. This matter has been considered by various High Courts, and it has been held that if no proceedings are taken under O. IX, r. 13, there is nothing to prevent the defendant, who files an appeal against the ex parte decree, to challenge the correctness of the order on the grounds mentioned in O. IX, r. 13 C. P. C. THE principle in Maharajah Moheshur Singh's case (3) has been extended to cover this case also even though the proceeding under O. IX, r. 13 in not an interlocutory proceeding, and comes into existence only after the decree has been passed. THE reasoning seems to be that if it was the intention of the legislature to bar such a point being raised when no action was taken under O. IX, r. 13 a provision similar to sub-sec. (2) of sec. 105 C. P. G. would have been made in the Code with reference to O. IX, r. 13 proceedings. In this connection we may refer to (a) Jethalal Girdhar vs. Varajlal Bhaishankar (9), (b) B. Devai Sahib vs. Ammeenammal (10), (c) Janendra Mohan Bhadury vs. Profullananda Goswami (11 ). Though these were cases of refusal of adjournment on insufficient grounds, the principle was laid down that even if no proceedings were taken under O. IX, r. 13, it is open to challenge the order granting adjournment in the appeal from the decree finally passed. Further in Ramlal Gope vs. Kali Prasad Sahu (12),the following observations were made - "it is open to a defendant to prefer an appeal against the ex parte decree as also to make an application under O. IX, r. 13, and then to come up in appeal under O. 43, r. 1, (d ). If he follows the special procedure of O. IX, he will have an opportunity of placing before the court materials as to why he was precluded from being present when the case was tried ex parte. On the other hand, if he proceeds straight in an appeal against the original ex parte decree, he will be at some disadvantage because the court of appeal will not be in possession of the materials which prevented his appearance, If, however, the defendant can show that there is an error, defector irregularity, in an order rejecting his application for time which affects the decision of the case, there is no reason why he will not succeed even if he does not adopt the special procedure for the restoration of the suit and comes up in second appeal so long as he can bring the case within the purview of sec. 100. " THE High Courts seem, therefore, to take the view that even if no proceedings are taken under O. IX, r. 13, the ex parte decree can be challenged on the grounds mentioned in O. IX, r. 13 from an appeal from the decree itself. In such a case, the defendant may be at a disadvantage but that is a risk which he takes himself. If the decision in Berisal Singh's case (2) is understood in this sense namely that the party cannot ask for a remand in order to bring the materials on the record, and can only urge the points arising under O. IX, r. 13 on the materials already on the record, it must be taken to be correct. But if it lays down further that the party cannot, even on the materials on the record, raise the points arising under O. IX, r. 13, and ask for a decision of the appellate court simply because it has not taken proceedings under O. IX, r. 13, the decision would appear to that extent to be incorrect. THE conclusion, therefore, at which we arrive is this - Where an application under O. IX, r. 7 is dismissed and an ex parte decision follows, the defendant has two remedies open to him. He may apply under O. IX, r. 13 in which case he will have a right of appeal, and can come in revision to this Court. If he follows that, it stands to reason that he cannot subsequently be heard on the same point in the appeal from the decree itself. But if instead of following the remedy provided in O. IX, r. 13 he chooses to come straight in appeal from the ex parte decree, he cannot in view of sec. 105 (1) G. P. G. be precluded from challenging the correctness of the ex parte decree on any ground including the grounds covered by O. IX, r. 13, provided that he asks the court to decide on the materials already on the record, and that he is not entitled to ask for a remand to allow him to put more materials on the record to substantiate the grounds which he could have raised under O. IX, r. 13. But it follows from this that a ground can be raised under sec. 105 challenging the correctness of the order under O. IX, r. 7 in the appeal that might finally come to this Court from the ex parte decree, that may follow the rejection of an application under O. IX, r. 7. Our answer, therefore, to the question formulated by us' is - Where an application under O. IX, r. 7 C. P. C. has been dismissed, it is open to the defendant to take a ground under sec. 135 C. P. G. in the appeal which would finally come to the High Court from the decree passed in the suit, and therefore, a revision from an order dismissing an application under O. IX, r. 7 C. P. C. does not lie in view of the decision in Purohit Swarup Narain's case. Let this answer be returned to the Bench concerned. .;