P L D 1965 Dacca 418 (PLP)

An ex parte rent decree was obtained on 2nd January 1959, against the opposite‑party by the petitioner where upon the opposite‑party filed an application under order IX, in the 13 of the Code of Civil Procedure op 21st October 1960, for setting aside the ex parte decree and restoring the suit to file, alleging, inter alia, that the ex parte decree was obtained by fraud and suppressing summons for which she had suffered substantial loss and that due to the fraud practised upon her she could not know of the suit or of the ex parte decree earlier than 31st August 1960, and that she came to know for the first time on that date namely on 31st August 1960 from a letter, Exh. 1, which was received by her on that date. The decree‑holder opposed the application under Order IX, rule 13 of the Code of Civil Procedure contending, inter alia, that the application was not signed by the petitioner, that no fraud was practised that she wag aware of the proceedings of the suit and that the application was barred by limitation. The learned Munsif on consideration of the evidence was of the opinion that due to the fraud and suppression of summons the petitioner could not know of the ex parte decree earlier than 31st August 1960 and appear in the suit and that she had suffered substantial loss inasmuch as a property worth Rs. 30,000,00 (sic) was sold at a nominal price of Rs. 100.00 only and in this view of the matter allowed the application, set aside the ex parte decree and restored the suit to file. Hence the present Rule at the instance of the decree‑holder. The learned Advocate appearing for the petitioner before me has pressed only 3 grounds. His first ground is that in view of the provision of section 171 of the Companies Act the petitioner was to take leave of the Court before she filed the application under Order IX, rule 13 of the Code of Civil Procedure. In support it has been argued that a proceeding under Order IX, rule 13 of the Code of Civil Procedure is an independent one and as such it comes under the proceedings as mentioned under section 171 of the Companies Act. Then again fresh evidence is to be taken after summoning the parties in order to dispose of this matter. It has been further contended that there is also appeal or revision provided by the Code against an order passed on an application under Order IX, rule 13 of the Code of Civil Procedure. Reliance was placed on a decision of a Bench of this Court in the case of Sayedal Haq v. The Official Liquidator, Noakhali Union Bank Ltd. (13 D L R 481) by the learned Munsif in order to dispel the above argument advanced by the lawyer of the decree‑holder. In that case it was held that once a proceeding is started with the leave of the Court there is no necessity for a person other than the receiver appointed by the Court to take fresh leave of the Court to file appeal or revision as the case may be. The learned Advocate for the petitioner has tried to distinguish that case contending, inter alia, that in that case it was decided that in order to file an appeal by a judgment‑debtor, in a suit instituted by the receiver the judgment‑debtor is not to take any leave of the Court to prefer an appeal, that the learned Judges were not called upon in that case to decide whether an application under Order IX, rule 13 of the Code of Civil Procedure required the previous leave of the Court to be filed in Court. In addition to that, relying on the case of Milawa Ram v. People's Bank of India (A I R 1916 Lah. 24) he has argued that the applica?tion under Order IX, rule 13, is an independent proceeding bereft of any connection with the original suit. Though the argument is ingenious and apparently has some force, I cannot accept the view submitted by the learned Advocate of the petitioner. The proceeding under Order IX, rule 13 is not an independent proceeding in the sense that without any previous ex parte decree or order such proceeding can be taken recourse to, rather the provision goes to show that when a decree is passed ex parte the judgment‑debtor under certain circumstances may file an application under Order IX, rule 13 of the Code. From this it appears that unless an ex parte decree is passed no person can file an application under Order IX, rule 13, i.e., the passing of an ex parte decree is the cause of action for a proceeding under Order IX, rule

13. As to the contention that the evidence shall have to be taken it may be observed that the evidence is not to be directed for proving any fresh matter but is, to be directed with reference to the proceedings in the main suit, namely, whether any summons was duly served or not or that the applicant was prevented by any sufficient cause from appearing when the suit was called upon for hearing. So from the provision of Order IX, rule 13 of the Code it is clear that the evidence that shall have to be given is not in respect of a proceeding independently of the suit but in respect of the proceedings in the main suit. Hence though there has been a provision for appeal or revision, in my A opinion, the proceeding under Order IX, rule 13 is not a proceeding as contemplated under section 171 of the Companies Act and as such no previous permission needed to be taken from the Court. Mr. Aziz, the learned Advocate for the opposite‑party has relied on the case of Benaras Bank Ltd. v. Sashibushan Misra (A I R 1948 Pat. 398). There is a discussion of some other cases in that case and it appears that the decision supports my above view. The second ground is on limitation. The ex parse decree was passed on 2nd June 1959, and the petitioner filed the application on 21st October 1960, alleging that she came to know for the first time of the decree on 31st August 1960. It is contended by the learned Advocate for the petitioner that the finding of the learned Judge that the application is not barred by limitation is based on no legal evidence, whereby it is meant that Exh. 1, a letter on which a reliance has been placed was not legally admitted into evidence. On my asking the learned Advocate for the petitioner took me through the evidence of the son of the petitioner., He has deposed in chief "my mother and I came to know about the ex parte decree for the first time on 31st August 1960 on receipt of this letter, Exh. 1 within this cover, Exh. 2". 1 asked the learned Advocate to find out whether this statement in chief was challenged in the cross‑examination. The learned Advocate frankly conceded that this piece of evidence was not challenged in the cross‑examination. Furthermore, the Exh. 1 went into evidence without any objection and as such as the document per se, is not inadmissible it cannot be said that the document is not admissible in law. The application under Order IX, rule 13 has been filed by the petitioner herself. In these circumstances, I do not find any substance in this contention also. The last ground, urged, is that the law does not authorise to entertain two proceedings and to give two remedies in that adopted (sic) at the same time. In developing this point it has been argued that on, the same date the petitioner filed an applica?tion under section 174 (3) of the Bengal Tenancy Act as well as an application under section 9, rule 13 of the Code and accordingly none of the proceedings is maintainable. These two proceedings are independent and I do not find any bar against the starting of such proceedings. Furthermore, the decree has been set aside and the application for setting aside the sale though redundant will give sufficient relief to both the parties. One does not go against the other but they can go together. I accordingly discharge the Rule but having regard to the facts I direct the parties to bear the costs of this Court. K. B. A. ????????????????????????????????????????????????????????????????????????????????????????????? Rule discharged.