ORDER
1. Feeling aggrieved by an order passed by the revisional Court exercising jurisdiction under Section 25 of the Provincial Small Cause Courts Act whereunder allowing the revision, an order passed by the trial Court rejecting an application filed by the judgment-debtor under Order IX, Rule 13 of Civil Procedure Code was set aside and the suit restored for being decided afresh the plaintiff has now approached this Court seeking redress praying for the quashing of the revisional order.
2. The facts shorn of details and necessary for the disposal of the present case lie in a narrow compass. The petitioner had filed a suit being suit No. 31 /85 in the Court of Judge Small Causes seeking ejectment of the defendant from the premises in dispute and for recovery of arrears of rent and damages for use and occupation which was decreed ex parte against the defendant on 18-4-88. This decree was challenged by the defendant by means of a revision which was filed under Section 25 of the Provincial Small Cause Courts Act. This revision was initially entertained and admitted but was dismissed for default on 30-10-89. The defendant thereafter unsuccessfully made effort to get the aforesaid order recalled and his application seeking setting aside of the dismissal of the revision was rejected on 14-3-90. It was thereafter that on 28-3-90 the petitioner moved an application under Order IX, Rule 13 read with Section 17 of the Provincial Small Cause Courts Act seeking setting aside of the ex parte decree dated 18-4-88. This application was obviously barred by time.
3. The trial Court after considering the relevant material on the record came to the conclusion that no sufficient cause had been made out which could justify the condonation of the delay in filing the application. The trial Court also came to the conclusion that the application for setting aside the ex parte decree could not be deemed to be maintainable in view of the prohibition contained in the explanation added to Order IX, Rule 13, C.P.C. In view of the dismissal of the revision. Consequently, the trial Court rejected the application for setting aside the ex parte decree dated 18-4-88. This order was challenged by the defendant before the revisional Court, The revisional Court agreed with the view of the trial Court that the defendant was not entitled to the benefits available under Sections 5 and 14 of the Limitation Act. The revisional Court further recorded a finding that the decree of the trial Court stood merged in the decree passed by the revisional Court and the application for setting aside the ex parte decree dated 18-4-88 could not be held to be maintainable. In spite of having affirmed the findings recorded by the trial Court on the aforesaid questions the revisional Court set aside the order of the trial Court rejecting the application under Order IX, Rule 13, C.P.C. referred to above simply on the ground that in his view it would be in the interest of justice to do so as in his view the suit deserved to be decided on merits and accordingly expressly stating that the revisional Court was inclined to set aside the order passed by the trial Court while exercising the inherent jurisdiction vesting in the Court, the revision was allowed and setting aside the order dated 6-4-91 the ex parte decree dated 18-4-88 was set aside on the condition of payment of Rs. 200/- as costs within a month, with a further direction that on the payment of the cost the suit shall be restored to its original number and decided after affording full opportunity to the parties to lead evidence in support of their respective cases.
4. I have heard the learned Counsel for the petitioner and the learned Counsel representing the plaintiff-decree-holder. I have also carefully perused the impugned orders.
5. The provisions contained in Section 17 of the Provincial Small Cause Courts Act stipulate that the procedure prescribed in the Code of Civil Procedure, 1908 shall save in so far as is otherwise provided by that Code or by the Small Cause Courts Act be the procedure followed in a court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. The proviso to Section 17 stipulates that an applicant for an order to set aside the decree passed ex parte or for a review of judgment shall at the time of presenting his application either deposit in the court the amount due from him under the decree or in pursuance of the judgment or give such security for the purposes of the decree or compliance with the judgment as the court on a previous application made by him in this behalf may have directed. In the circumstances, therefore, it is obvious that an application seeking setting aside of an ex parte decree has to be governed by the provisions contained in Order IX, Rule 13 of the C.P.C. the requirements prescribed whereunder must be satisfied in addition to the requirement contemplated under the proviso to Section 17 of the Provincial Small Cause, Courts Act before ex parte decree can be set aside. The explanation added to Order IX, Rule 13 of the C.P.C. by C.P.C. (Amendment Act, 1976) (No. 104/1976) provides as follows:--
"Explanation -- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree."
The effect of the aforesaid explanation was considered by the apex Court in the case of Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, reported in AIR 1982 SC 1397. In the aforesaid decision it was indicated that the doctrine of merger of trial Court's decree in the appellate decree applied in a limited area. It was pointed out that such instances where the trial Court's decree does not merge with the appellate decree may arise when the appeal is dismissed in default or where it is dismissed as having abated by the reason of the omission of the appellant to implead the legal representative of a deceased-respondent or where it is dismissed as barred by limitation and in such cases the trial Court's decree could not be deemed to have merged with the appellate decree. It was clearly pointed out in the aforesaid decision that this limited area of operation of the doctrine of merger was extended enormously with the adding of the explanation to Order IX, Rule 13 of the C.P.C. The Hon'ble Supreme Court was quite emphatic when it pointed out that with the explanation in operation, no application for setting aside an ex parte decree could lie where the defendant had filed an appeal and the appeal had been disposed of on any ground other than the ground that the appeal had been withdrawn by the appellant. It was observed in the aforesaid case that by en-acting the explanation the Parliament left it open to the defendant to apply under Rule 13 of Order IX, C.P.C. for setting aside an ex parte decree only if the defendant had opted not to appeal against the ex parte decree or in the case where he had preferred an appeal, the appeal had been withdrawn by him. The legislative attempt, it was pointed out, which had been incorporated in the explanation was to discourage a two pronged attack on the decree and to confine the defendant to a single course of action.
6. It may be noticed at this stage that while deciding a revision under Section 25 of the Provincial Small Cause Courts Act, the revising authority stands vested with the jurisdiction to interfere in the order or decree passed by a court of Small Causes if it is not according to law. Taking into consideration the decision of the Apex Court referred to above the conclusion is inescapable that the application for setting aside the ex parte decree which had been filed subsequent to the dismissal of the revision on 20-10-89 did not lie and could not be entertained in view of the provisions contained in the explanation, as the word 'appeal' occurring therein will be deemed to refer to 'revision' in its application to the proceeding under the Provincial Small Cause Courts Act by necessary implication.
7. There is yet another aspect which cannot be lost sight of. The revisional Court had affirmed the decision of the trial Court that the defendant had not been able to make out a sufficient cause justifying the condo-
nation of delay in filing the application. It bad further found the application to be not maintainable. In such a circumstance recourse to the jurisdiction envisaged under Section 151 of the C.P.C. could not be taken and the ex parte decree could not be set aside in a purported exercise of the inherent jurisdiction vesting in a court. In the decision of a Full Bench of this Court in the case of Radha Mohan Datt v. Abbas Ali Biswas, reported in AIR 1931 All 294, it was clearly observed that in the absence of the requisite conditions having been fulfilled as stipulated in the provisions contained in Order IX, Rule 13, C.P.C., the trial Court could have no jurisdiction to set aside the ex parte decree and restore the suit. In this view of the matter, also the impugned order is manifestly erroneous and cannot be sustained.
8. In view of the conclusions indicated hereinbefore this writ petition succeeds and allowing the same the impugned order passed by the revisional Court dated 21-12-92 is hereby, quashed.
9. There shall, however, be no order as to costs.
10. Petition allowed.