Law: Civil Procedure Code (V of 1908)

Section:

Civil Procedure Code (V of 1908)----   ------O. IX, r. 13-Hearing of application after disposal of appeal preferred by party other than the defendant against whom ex-parte decree was passed-When competent.   Where a defendant against whom an ex parte decree is passed is not joined as a party to the appeal preferred by other parties to the suit, (though he might have been party respondent in that appeal) and the Appellate Court does not adjudicate upon his case, the ex parte decree against him does not merge in the decree of the Court of appeal so as to preclude him from applying under this rule to the Court which passed the ex parte decree to set aside the decree.   Monomohini Choudhurani and another v. Nara Narayan Roy Choudhuri and another 4 C W N 456 ; Mono Mohan v. Niropuendra Nath Nandi and others A I R 1937 Cal. 548 ; Kalimuddin Ahmed v. Esobakuddin and others A I R 1924 Cal. 830 ; Monomohini Choudhurani and another v. Nara Narayan Roy Choudhuri and another 12 C L J 530 and Bhonai Sardar and others v. Tarak Nath Choudhury A I R 1937 Cal. 548 ref. JUDGMENT   This rule is directed against the order passed by the learned Munsif on the 16th September 1958, restoring the suit to file. The petitioners (plaintiffs) instituted a suit on the 6th November 1956, for declaration of their title to the suit land for recovery of khas possession after evicting the defendants therefrom and for mesne profits.   The suit was contested by defendant No. 7. The suit was decreed on the 27th August1957, on contest against defend ant No. 7 and ex parte against the rest. The defendant No. 7 preferred Title Appeal No. 277 of 1956, on the 25th October 1957. During the pendency of the aforesaid appeal the opposite parties Nos. 1 to 3, who happened to be defendant Nos. 22, 24 and 25 respectively in the Title Suit filed an application under Order IX, rule 13 of the Code of Civil Procedure for restoration of the suit to file after setting aside the ex parte decree, on the 11th November 1957. Thereafter on the 9th April 1958, the title appeal at the instance of defendant No. 7 was dismissed and on the 16th September 1958, the suit was restored to file. Hence the…