1973 PLP 589 (SCMR)

SALAHUDDIN AHMED, J.‑The petitioner seeks leave to appeal from the order of a learned Single Judge of the High Court of Sind & Baluchistan dismissing the former's revision petition under section 115 of the Code of Civil Procedure. The learned Judge held that the revision petition was not maintainable as the petitioner had neither preferred an appeal available to him under section 96(2) of the Code of Civil Procedure nor made an application under Order IX, rule 13 of the Code of Civil Procedure. In this revision petition before the High Court, the petitioner felt aggrieved by the order dated the Ist of August 1967, of the Civil Judge 1st Class, whereby the application for setting aside the ex parse order had been dismissed. His revisional application from the order dated the 1st of August 1967, was dismissed on the 3rd of October 1967. The revisional proceedings arose out of the respondent's suit against the petitioner for recovery of Rs. 15,000 due from the latter as arrears of rents of a house. Since the 24th of May 1967, for one reason or another the petitioner succeeded in deferring the trial of the suit till the 13th of October 1967, when an ex parte decree was passed against him. The petitioner filed the revision in the High Court sometime in November 1967, i.e., after the ex parte decree had already been passed. In these circumstances the High Court was right in holding that the revision under section 115 of the Code of Civil Procedure was not maintainable. Section 96(2) of the Code of Civil Procedure provides that an appeal may lie from an original decree passed ex parte and section 115 of the Code of Civil Procedure empowers the High Court to call for the record of any case which bas been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears ‑ (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. The underlining is ours. It may be mentioned here that unless the ingredients of the section exist mere calling for the records does not empower the High Court to exercise its revisional jurisdiction. The relevant provisions of Order IX, rule 13 of the Code of Civil Procedure are as follows :‑ "In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside ; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit." Under Order XLIII, rule 1(d) of the Code of Civil Procedure an appeal lies from an order under rule 13 of Order IX of the Code rejecting an application (in a case open to appeal) for an order to set aside a decree ex parte. In view of the aforesaid provisions of law once an ex parte decree has been passed against a defendant he has two alternatives before him, namely‑(1) either make an application under Order IX, rule 13 of the Code for setting aside the ex parte decree and in case he is unsuccessful an appeal under Order XLIII, rule 1(d) o: the Code is available to him, or (2) he may prefer an appeal under section 95, subsection (2) of the Code. The petitioner not having pursued any one of the two courses open to him, the High Court was right in rejecting his revisiona6 application under section 115 of the Code of Civil Procedure at not maintainable. The petition is accordingly dismissed. Petition dismissed.