1.Heard the learned counsel for the respective parties. These two appeals are heard for admission together and disposed of by common order inasmuch as they arise from two suits between same parties.
2.The appellant herein (in both appeals) is the original defendant no.1 in suits filed by the respondents-plaintiffs. These suits were filed as Summary Suits under Order 37 CPC. Summons was issued to the defendant by registered post AD inasmuch as the defendant was residing outside the territorial jurisdiction of the trial court. The said summons was returned bearing the endorsement "refused". The trial court then proceeded to treat the defendant as "duly served in accordance with law", and in the absence of any appearance having been filed, passed a decree in favour of the plaintiff. It appears that thereafter the plaintiffs filed execution proceedings in which the defendant-judgement debtor-appellant had not only been served, but had also participated. It was during the course of execution proceedings that the appellant-judgement debtor then filed an application in the trial court to set aside the exparte decree.
3.On a perusal of the application it is found that the same has been styled as an application under Order 37, Rule 4 CPC, as also under Order 9, Rule 13 CPC.
4.I do not propose to go into the question as to whether the provisions of Order 9, Rule 13 CPC would apply where the decree sought to be set aside is a decree in a summary suit passed under Order 37 CPC. I do not examine this question for the simple reason that the application made by the appellant in the trial court for setting aside the exparte decree was apparently time barred. When this question was examined by the trial court, it appears that the appellant-applicant chose to treat the application as one under Order 37, Rule 4 CPC inasmuch as the same provides for a longer period of limitation. It was on this basis that the submissions were made, and the trial court heard and decided the said application under Order 37, Rule 4. After a fullfledged hearing the trial court rejected the said applications by a speaking order. It is that order in the two applications which is the subject matter of the present appeals, filed under Order 43, Rule 1 CPC.
5.A plain reading of Order 43, Rule 1 CPC indicates that an order passed under Order 37, Rule 4 is not appealable, inasmuch as such an order is not contemplated by any of the various clauses specifically enumerated in Rule 1. In the premises aforesaid the present appeal under Order 43, Rule 1 is not maintainable and is liable to be dismissed on this ground alone.
6.However, I do not propose to dismiss the appeals only on this ground. I have also heard the learned counsel for the appellant on merits.
7.Learned counsel for the appellant emphatically asserts the various contentions raised in his application made under Order 37, Rule 4 CPC, and in this context submits that the lower court was in error in rejecting his application. What is pertinent to note at this stage is that inspite of vehement submissions of the learned counsel for the appellant, the only fact which emerges is that the contentions raised in the applications remained contentions and remained in the form of averments, with not an iota of evidence which would lend factual support or credence to such averments or assertions viz. that the endorsement made by the postman - "refused", was false. In short, the appellant-applicant has not established by appropriate evidence on record any of the factual contentions raised in his applications. To be more precise, the appellant-applicant has not even attempted to lead any evidence for the purpose of establishing such averments and contentions. Under the circumstances the impugned order cannot be faulted on any ground whatsoever, particularly when the lower court has examined the submissions made by the respective parties therein on merits, and has arrived at a finding of fact to the effect that the applicant has failed to establish his case.
8.Learned counsel for the appellant has also sought to contend before me as to how, why and on what grounds the exparte decree is bad in law. I do not propose to deal with these contentions in greater detail for the simple reason that the merits of the decree, the material on which the decree is passed, and/or the legal validity of the decree is not and cannot be the subject matter of challenge in the present appeal under Order 43, Rule 1 CPC, since that is the exclusive province of the appellate court exercising jurisdiction in an appeal from a decree under section 96 CPC. Even otherwise, to entertain such contentions on the part of the judgement debtor, who is the respondent in execution proceedings which are pending today, would amount to going behind the decree. For this reason as aforesaid, I have not entertained the contentions in that field.
9.These appeals, therefore, fail and are accordingly dismissed. Notice in each of these appeals is discharged with no order as to costs.
10.The respondent nos.1 and 1/1 to 1/5 are permitted to withdraw the amount deposited by the appellant in each of these appeals. The Registry shall issue an account payee cheque in the name of respondent no.1. The aforesaid liberty to the respondents to withdraw the said amount has been granted by me by overruling the objections of the appellant, inasmuch as it is both understood and clarified that on withdrawal of the said amount, the respondents shall give credit to the extent of these amounts in the relevant execution proceedings filed by them against the appellant-judgement debtor.
20.12.1996[Y.B. BHATT J.]