Allahabad High Court
Gangadin Ram Krishna vs Smt. Kailashi Kuer on 11 September, 1959
Equivalent citations: AIR1961ALL96, AIR 1961 ALLAHABAD 96
ORDER S.S. Dhavan, J.
1.This is a revision against an order of the learned 1st Additional Civil Judge, Kanpur, setting aside an ex parte decree. The applicants obtained a decree on 23-2-1954. Three years afterwards the defendant respondent Smt. Kailashi Kuer made an application under Order 9, Rule 13, C. P. C., for the setting aside of this decree on the allegation that she was out of station and had no knowledge of the suit and the decree. The learned Judge made the following observations on the merits of her case :
"No doubt the circumstances are very much against the applicant, and her own statement is partly contradictory to her affidavit. However, the fact that she had no knowledge of the suit is not rebutted by any dependable evidence. The ex parte decree may therefore be set aside."
The learned Judge, however, went on to make the further observation.
. .. . . the applicant herself has been grossly negligent and it is strange that she did not come to know of the suit in spite of all these proceedings,"
2. I am satisfied that this order is self-contradictory and does not show that the learned Judge was satisfied that the defendant respondent was prevented by any sufficient cause from appearing in the suit. In the first part of his judgment he has observed, "the circumstances were very much against the applicant" and that "her own statement is partly contradictory to her affidavit". But he allowed the application merely on the ground that the plaintiff decree-holder had not rebutted her affidavit by any dependable evidence. In fact, the learned Judge took the attitude that both parties were unreliable : he observed that the defendant-respondents' affidavit was not free from suspicion and that the decree-holder's evidence in rebuttal, too, was not dependable. He observed that it was strange that the defendant-respondent should have been ignorant of the suit, and commented upon that he termed the "gross negligence" of the person seeking to set aside the ex parte decree, but he allowed the defendant's application and set aside the decree,
3. I am afraid the learned Judge adopted an unsatisfactory approach to the principles governing the court's decision in an application under Order 9, Rule 13, C. P. C. An application to set aside an ex parte decree can be allowed only after an express finding by the court that it is satisfied that the applicant was prevented by a sufficient cause from appearing in the suit. It must be rejected if the Court is not so satisfied. In this case the learned Judge observed that the applicant's affidavit is not free from suspicion but nevertheless allowed it on the ground that the decree-holder's evidence in rebuttal is not reliable. This was virtually a finding that the court was dissatisfied with the evidence of both the parties. The omission to record a clear finding of satisfaction in accordance with Rule 13 is a material irregularity which vitiates the decision.
4. Dr. Asthana, learned counsel for the decree-holder stated that the suit was decreed a long time ago and even the mortgaged property has been sold in execution of the decree. That may be true. But the learned Judge has also observed that the said price fetched in execution was low. In the circumstances it would be in the interests of justice to remand the case to the trial court with a direction that it should re-hear the defendant-respondent's application under Order 9, Rule 13 in accordance with the principles laid down in Order 9, Rule 13 as explained in this order.
5. I, therefore, allow this revision and set aside the order of the learned Judge, and remand the case with the direction that he shall dispose of the case in accordance with the observations made in this judgment. In the circumstances of this case there shall he no order as to costs.