(February 17, 1982) 1982 (TLS)102672

1982-DLT-21-323 :: 1982-RLR-0-287

NAND GOPAL BACCHAS Vs. Bank of India

B. N. Kirpal, J.

( 1 ) THE respondent had filed suit for the recovery of Rs. 96,869-09 against the petitioner herein. Time was granted to the present petitioners to file their written statement.

( 2 ) THE petitioners herein did not file the written statement but moved two applications, one under Order 7 Rules 9 and 14 read with Section 151 Civil Procedure Code. and another under Sections 6, 17 and 23 of the Court Fees Act. The Additional District judge in his judgment dated 2nd September, 1981 observed that despite time having been granted the defendants-petitioners-herein, had not filed their written statement. The Additional District judge proceeded under Order 8 Rule 10 and, taking the allegations in the plaint to be correct, he pronounced the judgment against the defendants. The Additional District Judge observed " I grant to the plaintiffs a decree for the recovery ofrs. 869-09 ps. with costs of the suit. "

( 3 ) THE aforesaid order is new sought to be challenged in the present Petition under Section 115 C. P. C.

( 4 ) IT was put to the learned counsel for the petitioners that the petition under Section 115 was not maintainable. The learned counsel contended that the revision was maintainable and it was not necessary that an appeal should be filed against the decree in order to gel the impugned judgment and decree set aside.

( 5 ) IN order to decided this point it is necessary to refer to the amended as well unamended provisions of the Code of Civil Procedure. Prior to amendment in 1976, Order 8 Rule 10 read as follows:

"where any party from whom a written stement is so required fails to present the same within the time fixed by the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. "

( 6 ) IT is clear that prior to the amendment the court could pronounce Judgment against the defendent under order 8 Rule 10, if a written statement had not been filed. Such a judgment could be appealed against under the provisions of Section 104 read with Clause (b) of Rule 1 of Order 43.

( 7 ) THE aforesaid provisions of Rule 10 of Order 8 as well as Order 43 have been amended with effect from 1st February, 1977. The amended Rule 10 of Order 8 reads as follows :

"where any party from whom a written statement. is required under Rule 1 or Rule 9 fails to present the same wilhin the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgement against him, or make such order in relation to the suit as it thinks fit and upon such judgment, a decree shall be-drawn up. " (emphasis added)

( 8 ) CLAUSE (b) of Rule. 1 of Order 43 was omitted. In the "objects and reasons" whereby the aforesaid clause was omitted it was stated as follows :

"clause (B) provides for an appeal against an order under Order VIII, Rule 10, where the defendant fails to tile a written statement within the time fixed by the Court and the Court pronounces judgment against him. This clause is being omitted with a view to reducing two appeals because the defendant can, in an appeal from the decree passed as a result of the order, take the same point as he can take in an appeal under clause (b ). "

( 9 ) IT is clear that, as mentioned in the aforesaid objects and reasons to the bill proposing the amendment, an appeal can now be preferred against the decree passed under Order 8 Rule 10. Rule 10 new specifically provides that upon the judgment being pronounced a decree shall be drawn up. Under Section 115 the High Court has jurisdiction to interfere in a case decided by a subordinate court in which no appeal lies. It is obvious that against the judgment passed and the decree, which is drawn up, under Order 8 Rule 10, an appeal is maintainable under the provisions of Section 96 of the Code of Civil Procedure. As such no revision petition under Section 115 Civil Procedure Code. is maintai