JUDGMENT Karmat Husain, J.
1. The plaintiff, in 1910, sued on a mortgage made by two joint brothers, Bhopal and Bahadur. Bhopal, his son Baddari, grandson Harnarain Singh and nephew Sham Lal were defendants. Baddari was appoined guardian ad litem of his minor son, Harnarain, and notice was served upon him on the 14th of August 1910. Bhopal sighed it as a witness. Notice was not served on Bhopal personally bat the summons was affixed on the door of his house. The record does not show it this was deemed by the Munsif to be, sufficient services. The suit was decreed on the 19th of December 1910. The decree against Bhopal was ex parte. An application for an order absolute was made on the 16th of July, 1911 and, granted.
2. Bhopal, on the 1st of August 1911, applied under Order IX, Rule 13, to have the ex parte decree set aside, stating in the affidavit, that on the date on which the case was heard, he was in Allahabad. The Munsif, holding that there was sufficient reason for absence, set aside the ex parte decree on the 18th of December 1911 and made another decree at variance, with the ex parte decree on the 13th of February 1912.
2. The decree-holder, on the 19th of February 1912, came to this Court in revision against the order dated the 18th of December 1911 bit never appealed against the decree, dated the 13th of February 1912.
3. In support of the application, it is argued that under Order IX, Rule 13, corresponding to Section 108, Code of Civil Procedure of 1882, a Court has power to set aside an ex parte decree "only when he (the applicant) satisfied the Court that the summons was not duly served or that he was prevented by any, sufficient cause from appearing when the case was called on for hearing" and as no cause is alleged for absence and as there is nothing on the record to show that summons was not duly served, the Munsif had no jurisdiction to set aside the ex parte decree. The reply of learned Counsel for the other side is that the remedy open to the applicant was to attack the order in appeal from the decree, dated the 13th of February 1912 and as he allowed it to become final, he could not be heard in revision. He also urges that the result of interference would be to set aside a final decree.
4. The contention that the Munsif acted with out jurisdiction is not an accurate statement of what took place. He wrongly considered what was no cause, to be a sufficient cause for absence, but did not act without jurisdiction. The order can, therefore, not be a fit subject for revision. Assuming that he acted with material irregularity though not without jurisdiction, the remedy of the applicant was to attack the order in appeal from the decree of the 13th of February 1912 under Section 105, Code of Civil Procedure, and as he failed to appeal, he cannot be allowed to come up in revision. In Farid Ahmad v. Dulari Bibi 6 A. 233 it was held that an order made under Section 25, Code of Civil Procedure, transferring a suit in which an appeal would lie from the decree made thereto, was not subject to revision by the High Court under Section 622. In Sheo Prasad Singh v. Kastura Kuar 10 A. 119 it was remarked that the revisional powers of this Court should not be exercised unless as a last resort for an aggrieved litigant. Even when there is a remedy by a fresh suit, there can be no revision. See Guise v. Jaisraj 15 A. 405. Regarding this case, Knox, J. in Debt Das v. Ejaz Husain 28 A. 72 : 2 A.L.J. 749 : A.W.N. (1905) 191 said:
Ordinarily, I am prepared to subscribe to that but in this matter each case must be judged upon the circumstances peculiar to it.
5. I adopt the following remarks in Moti Lal Kashibhai v. Nana 18 B. 35 substituting Section 115 for Section 622 and Section 105 for Section 591. 'An application under Section 622, Civil Procedure Code, cannot be entertained in the case of those interlocutory orders against which, though no immediate appeal lies, a remedy is supplied by Section 591, which provides that they may be made aground of objection in the appeal against final decree. The purpose with which Section 622 was framed was to enable a party to a suit to get a decision or order of a lower Court rectified by the High Court where there would otherwise be no remedy."
6. There is, however, a conflict of opinion whether an order setting aside an ex parte decree is or is not attackable in appeals from a final decree. A Bench of the Calcutta High Court held that it is not and that only such orders are within the purview of the section as are "affecting the decision of the case" with reference to its merits Chintamony Dassi v. Raghoonath Sahoo 22 C. 981 and Krishna Chandra Goldar v. Mohesh Chandra Saha 9 C.W.N. 584. According to that Court, the order can be revised under Section 622. Civil Procedure Code of 1882=Section 115, Civil Procedure Code of 1908, if the requirements of the section are satisfied Mahomed Hamidullah v. Tohurennissa Bibi 25 C. 155 : 1 C.W.N. 652. A Bench of the Madras High Court, in Gopala Chetti v. Subbier 26 M. 604 : 13 M.L.J. 308 has taken the opposite view, holding that an order setting aside an ex parte decree could be attacked in appeal from the final decree. With due respect to the learned Judges who decided Chintamony Dassi v. Raghoonath Sahoo 22 C. 981 and Krishna Chandra Goldar. v. Mohesh Chandra Saha 9 C.W.N. 584 I agree with the learned Judges who decided Gopala Chetti v. Subbier 26 M. 604 : 13 M.L.J. 308. There were no words in Section 622, Civil Procedure Code of 1882. nor are there any in Section 105, Civil Procedure Code of 1908, limiting the right of attack to such orders only as are affecting the decision of the case" with reference to its merits, and in the absence of any such limitation, a Court has no power to read such a limitation in the section.
7. The contention that in order to destory the right to apply for revision, some other remedy must exist on the date on which the order sought to be revised is made, has no force: All interlocutory orders, which can be attacked in appeals from final decrees under Section 105, are always passed before the final decree and if the contention was right, all orders, which might be attacked in appeal from the final decree, would furnish grounds for applications in revision and the object for which the section is enacted would be defeated.
8. For the above reasons, I would reject the application.
Knox, J.
9. I agree in rejecting the application. Sufficient ground has not been shown for interference.
10. The application is rejected with costs.