Authored By : Ernest Edward Fletcher, Thomas WilliamRichardson

Ernest Edward Fletcher, J.

1. This Rule was issued calling on the opposite party toshow cause why the order of the District Judge complained of should not be setaside on the ground that no appeal lay to him. The plaintiffs brought a suit toenforce a mortgage security, and obtained an ex parte decree. Under theprovisions of Order IX, Rule 13, Civil Procedure Code, the defendant No. 2applied to have the ex parte decree set aside. That application was rejected onthe ground that the said defendants did not appear in support of it. Againstthat order of rejection, the defendant No. 2 appealed to the District Judge.The District Judge set aside the order rejecting the application and directed theCourt of first instance to hear it on its merits. The present Rule was obtainedon the ground that the learned District Judge had no jurisdiction to hear anappeal from an order rejecting an application made under Order IX, Rule 13, ofthe Code when it was dismissed for default. No such limitation can be placedupon the right of appeal given by Order XLIII, Rule 1 (d), Civil ProcedureCode, in the case of the rejection of an application made under Order IX, Rule13. It seems to me that the learned District Judge clearly had jurisdiction tohear and dispose of the appeal. This Rule, therefore, must be discharged withcosts one gold mohur.

Thomas William Richardson, J.

2. I agree.

.

Pakari Pramanik and Ors.vs. Sarat Sundari Debya and Ors.(24.11.1916 - CALHC)