Law: Civil Procedure Code (V of 1908)

Section: 316

Law: Companies Ordinance, 1984

Section:

  Civil Procedure Code (V of 1908)-- ---0. IX, R.13 & OXVII, Rr.2 & 3---Sind Chief Court Rules (O.S.), R.22-- Setting aside ex parte decree---Distinction between an ex parte decree under OXVII, R.2, C.P.C. and a decree on merits under OXVII, R.3, C.P.C.---Suit was wrongly fixed for final disposal before Court when it came to be decreed---Court cannot resort to passing a decree on merits or otherwise, unless suit was duly fixed for hearing---When merits were not duly touched, while passing ex parte decree its recall can be considered under provisions of O.IX, R.13, C.P.C. for which defendants have made out application. The distinctive aspect between an ex parte decree under Order 17 Rule 2 C.P.C. and a decree on merits under Order 17 Rule, 3 of the same Code, consists of a party having been allowed time to do something in furtherance of the progress of the suit and its failing to do so, pursuant to which failure, irrespective of the party being present or absent on the next date, the Court may pronounce judgment, on such material as be available on the record before it. On the other hand, an ex parte decree on an adjourned date of hearing, under Order 17 Rule 2 C.P.C. is solely based on absence. The essential requirements of a decree under Order 17 Rule 3 C.P.C. are that the case should be duly fixed in Court, the defendant should ask for time to do something necessary for the progress of the case, and should fail in that behalf. In so far as the application of mind on the merits of the controversy are concerned the same appear to be common to decrees passed under rules 2 and 3 of Order 17 except, perhaps, while in the context of rule 2 the Court restricts itself to what the plaintiff avers in the plaint and what he deposes in an ex parte affidavit, if any, in relation to a decree under Order 17, Rule 3, C.P.C. it is required to examine such material by way of claim or defence, as be available before it in the suit. In the present case the suit was wrongly fixed for final disposal before the Court when it came to be decreed. The purported placement of the case under Rule 22 of the Original Side Rules of Sindh Chief Court seems to have been…