SYED QAMAR HASSAN, J. : -

The petitioner, Khaja Ghulam Chouse Saqalain moved the High Court by way of Writ Petition calling in question the propriety of the order of the Collector of Medak, dated 10-2-1953, upholding on appeal the order of the Rent Controller, who had dismissed the application of the petitioner for eviction of Faqir Baig, the 3rd respondent herein.

After the advent of the Hyderabad House (Rent, Eviction and Lease) Control Act, 1954 (to be hereinafter referred to as the Act) the writ petition was converted into one of revision under S. 21 read with S. 31 of the Act. The petition in the first instance came on for hearing before our brother Manohar Pershad, J.,on 11th October, 1957 and he referred it to a Division Bench to consider the question whether O. 9, R. 13, Civil Procedure Code was applicable to proceeding before the Rent Controller.

2The facts necessary for the appreciation of the question involved are that the petitioners application for eviction was allowed ex parte on 15th November, 1952 giving 15 days time for vacating the disputed house at Siddipet.

3. After the expiry of 15 days the petitioner put in an execution petition in the Munsifs Court. The Munsif refused to issue execution on the ground that no final orders had been passed by the Rent Controller after the expiry of the term fixed in the order. On 13th December, 1952, the petitioner applied to the Rent Controller setting out the objection taken by the Munsif. The Rent Controller on the same date passed the following order :

The period of a fortnight in my decision dated 15th November, 1952 has now expired; the tenant be ordered to vacate the premises." The respondent, however, filed an application for setting aside the ex parte order on 17th December, 1952. The Rent Controller granted the application and in the result of the inquiry which he held, he dismissed the application for eviction.

4. The petitioner took the matter in appeal to the Collector and contended before him that the only remedy open to the respondent was to have appealed against the eviction order of 15th November, 1952. It was not open to him to have recourse to the provisions of O. 9, R. 13, C. P. C. In support or that contention, reliance was placed on Ruplal Sitaram v Sheo Shankar, AIR 1953 Nag 191 (A) and Hansari Sabaiah v. Bhalchander Rao, AIR 1953 Hyd 243 (B). The Collector overruled the objection preferring to base his judgment on Syed Mohiuddin Ali Khan v. Awwal Talukdar Baghat, 39 Dec LR 440 (C), which was cited by the respondent.

5. The respondent has preferred to remain ex parte before us. The learned advocate for the petitioner contended that in the Rent Control Order, 1353F. under which the proceedings were initiated there was no provision making the provisions of O. 9, R. 13, C. P. C. applicable to proceedings before the Renti Controller. The Act which superseded the Rent Control Order, 1353 F. also does not provide that the remedy under O. 9, R. 13 would be available to the party against whom an ex parte judgment has been passed.

To fortify his contention he referred us to the authorities cited before the Collector and also to Neelaveni v. Narayana Reddy, AIR 1920 Mad 640 (FB) (D) and Abdul Khadir v. A. K. Murthy, AIR 1948 Mad 235 (E). He further urged that the case of 39 Dec LR 440 (C), was distinguishable since in that case the decision proceeded on the assumption that the provisions of S. 127, Hyderabad Civil Procedure Code corresponding to O. 9, R. 13, Indian Civil Procedure Code applied to the proceeding before the Rent Controller and the appellate authority.

6. After giving careful consideration to the arguments advanced before us, we find force in the above contention. As has been held by Seshagiri Aiyar, J., in the Full Bench case of AIR 1920 Mad 640 (D), a right to set aside an ex parte decree belongs to the same category as an appeal or review. They are not matters to be inferred but must be given by the statute.

In so far as statutes are concerned,