Wanchoo, C.J.—This matter has come before this Bench on a reference by a learned single Judge. He has not formulated the question to be answered by the Bench, We shall, therefore, briefly given the circumstances in which the reference has been made, and then formulate the question arising therefrom.

2. A suit was brought by the plaintiffs who are opposite parties in this revision against three defendants, one of whom was Mangal Singh. Summonses were issued a number of times as there was difficulty in service. One of the dates fixed was 16th of July 1951. Summons was issued to Mangal Singh defendant who is the applicant in this revision for that date. The process server reported that Mangal Singh had refused to accept the summons. Therefore, the court passed an order on the 16th of July, 1951, that there was sufficient service on Mangal Singh and that the proceedings should go on ex parte against him. After further adjournment, the case came to be fixed for the 8th of October, 1952. On this date, Mangal Singh appeared and filed an application supported by an affidavit under O. 9, r. 7 C.P.C, for setting aside the ex parte order. The matter was enquired into, and on the 30th of January, 1950, the trial court passed an order dismissing the application under O. 9, r. 7. The present revision application is against this order.

3. When the matter came up for hearing before the learned single Judge, a preliminary objection was raised on behalf of the opposite party to the effect that the revision was incompetent in view of the decision of this Court in Purohit Swarup Narain vs. Gopi Nath(l). In that case, it was held that were it was open to a party to raise a ground of appeal in the High Court under sec. 105 C.P.C. from the final decree or order with respect to any order which had been passed during the pendency of the case, an appeal in the case lay to. the High Court within the meaning of the words "in which no appeal lies thereto" appearing in sec. 115 C.P.C, and a revision would not be competent against such an order passed during the pendency of a suit or proceeding. The contention of the opposite party was that the order dismissing the application under O.9, r. 7 C.P.C. could be challenged in second appeal which would eventually lie to the High Court by way of a ground under sec. 105 C.P.C., and, therefore, the revision was incompetent. The question, therefore, may be formulated thus—

"Where an application under O. IX, r. 7 C.P.C. has been dismissed, is it open to the defendant to come in revision from the dismissal, or is it possible for him to take a ground under sec. 105 C.P.C. in the appeal which would finally come to the High Court from the decree passed in the suit ?"

The learned single Judge has made this reference because of the doubt he entertains about the correctness of some single Judge decisions of this Court, in view of the decisions of some other High Courts.

4. We may refer briefly to the decisions of this court at the outset,

5. The first case is Berisal Singh vs. Pemchand(2). That was a second appeal before this Court in suit for possession. In that case, Bapna J. held that if the defendant did not apply for setting aside the ex parte decree, and merely filed an appeal against the decision given against him, he could not ask for a remand on the ground that the summons was not duly served, and that his grounds of appeal would be limited to the question of law and facts which were already on the record. This case not deal exactly with the point at issue before us; but it is urged that we can deduce from the observation in this case that it is not open to a party to attack an ex parte decree on the ground that the summons was not duly served if he did not proceed in the manner provided by O. IX, r. 13 C.P.C., or the corresponding provision in the order relating to appeals, namely O. XLI, r. 21 C.P.C.

6. The second case, which was decided by one of us, but which is not reported, is Hazarimal vs. Punamchand, decided on th

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