P L D 1962 Dacca 640 (PLP)

2. The plaintiffs (petitioners) instituted Title Suit No. 119 of 1956, on the 23rd of November 1956, in the 5th Court of Munsif at Barisal against defendant Kiran Kumar Sen Ray Choudhury and thirteen others for confirmation of possession on declaration of their title to the disputed land. As the defendants did not appear in spite of service of summons and issue of registered notices on them, the suit was decreed ex parte on the 13th of February 1957.

3. On the 13th of March 1957, defendant No. 1 Kiran Kumar Sen Ray Choudhury filed an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree on the ground of non‑service of summons on him.

4. The learned Munsif, on a consideration. of the evidence, held that summons and registered cards were duly served upon the defendants. Accordingly, the miscellaneous case under Order IX, rule 13 of the Code of Civil Procedure was dismissed on contest.

5. Against that order defendant No. 1, Kiran Kumar Sen Ray Choudhury filed an appeal before the District Judge. . The appeal was heard by the Subordinate Judge, 4th Court, Barisal. The learned Subordinate Judge also held that there was due service of summons and registered cards .on the defendants. But the learned Subordinate Judge held that for the ends of justice the defendant No. I should be given a change to fight out the case on merits and accordingly allowed the appeal on condition of payment of Rs. 60 as costs by the defendant No. 1 to the plaintiffs. It was directed that the sum of Rs. 60 was to be paid to the plaintiffs within twenty days of the intimation of the receipt of the record in the trial Court and that, in default, the miscellaneous case would stand dismissed. It appears that the sum of Rs. 60 was paid to the pleader of the plaintiffs on the 7th of May 1959, and the suit was restored to file.

6. It is against the order allowing the miscellaneous appeal that the present Rule has been issued at the instance of the plaintiffs.

7. On behalf of the plaintiffs (petitioners) it was argued that Order IX, rule 13 of the Code of Civil Procedure is to be strictly construed and that a Court has no power, apart from the provisions of the said rule, to set aside an ex parte decree. It was argued that, as both the Courts below found that there was due service of summons on the defendants, the appellate Court below had no jurisdiction to set aside the order of the learned Munsif and to restore the suit to file on the ground that for the ends of justice the defendant No. I should be given an opportunity to contest the suit.

8. The learned Advocate for the Opposite‑Party No. 1 submitted that there was actually a compromise between the parties and that it was settled that on payment of Rs. 60 the suit would be restored. It was submitted that the parties made the said compromise as the suit was brought against defendant No. 2 Sisir Kumar Sen Ray Choudhury who had no interest as his father defendant No. 1 Kiran Kumar Sen Ray Choudhury is alive and as defendant No. 8 Sailendra Nath Sen Ray Choudhury was long dead.

9. Besides the affidavit filed on the side of the opposite- party, there is nothing to show in the record that there was a compromise between the parties. On the other hand, it appears that the learned Subordinate Judge, after holding that there was due service of summons, allowed the miscellaneous case in order to give the defendant opposite‑party an oppor tunity to contest the suit. The learned Subordinate Judge also directed that the sum of Rs. 60 was to be paid as costs to the plaintiffs.

10. The learned Advocate for the opposite‑party submitted that if there had been no amicable settlement, between the parties for the restoration of the suit, at the time of the hearing of the appeal in the appellate Court below, the pleader for the plaintiffs would not have accepted the said sum of Rs. 60.

11. As there is nothing in the judgment of the learned Subordinate Judge, or in the record of the case, to show that there was a compromise between the parties, the contention that the learned Subordinate Judge allowed the appeal in terms of the compromise cannot be accepted. Conceding for the sake of argument that there was such a settlement between the parties, that also cannot help the opposite‑party, because a Court has no jurisdiction to set aside an ex prate decree under Order IX, rule 13 of the Code of Civil Procedure without being satisfied that there was no service of summons on the defendant. Again, for the fact that the pleader for the Plaintiffs received the sum of Rs. 60, as costs, the order setting aside the ex parte decree cannot be maintained as that would be going beyond the provisions of Order IX, rule 13 of the Code of Civil Procedure. In the case of Neelaveni v. Narayana Reddi (I L R 43 Mad, 94), a Full Bench of the Madras High Court held that Court has no power, apart from the provisions of Order IX, rule 13 of the Code of Civil Procedure, to set aside and ex parte decree passed by itself. In the case of Radhika Mohan Karmakar v. Surendra Nath Acharjee and others (67 C L J 519) it was held that a Court has no jurisdiction to set aside an ex parte decree under Order IX, rule 13 of the Code of Civil Procedure a unless the defendant shows that he had sufficient cause for non‑appearance when the case was called on for hearing.

12. So, the order passed by the learned Subordinate Judge in this case to set aside the ex parte decree under Order IX, rule 13 of the Code of Civil Procedure in spite of the concurrent findings of both the Courts below that there was due service of summons on defendant No. 1, was beyond jurisdiction and is liable to be set aside. The Rule is accordingly made absolute, the order passed by tile learned Subordinate Judge is set aside and that passed by the learned Munsif is restored. There will be no order for costs in this Rule. Rule made absolute.