Orders setting aside dismissal for default only reopen an inquiry and do not affect the decision of the case on merits.

Koman, J.

1. The first respondent was the judgment-debtor in O.S. No. 18 of 938 on the file of the Court of the District Judge, East Godavari. Some of the first respondents properties were sold in execution of the decree and were purchased by the decree-holder and two others who are the appellants before this Court. In E.A. No. 298 of 1941 the first respondent applied for setting aside the sale on the grounds of certain irregularities in the conduct of the sale. A compromise petition was filed by which the parties agreed to the petition being allowed on payment of the decree amount with poundage interest and commission, etc. The first respondent deposited a sum of Rs. 16,500 and applied in E.A. No. 296 of 1942, for setting aside the sale under Order 34, Rule 6. The auction purchasers opposed the applications on the ground that the correct amount had not been deposited. ?On 25th February, 1943, when the petition came on for hearing as the first respondent was not present they were dismissed for default and the sales confirmed. On two subsequent applications, E.A. Nos. 71 and 72 of 1943 for setting aside the default orders the order of dismissal for default was set aside on 2nd March, 1943. By way of abundant caution the first respondent also filed E.A. No. 93 of 1943 for setting aside the confirmation of the sales.

2. The learned District Judge has held that the order dated 2nd March, 1943, setting aside the orders of dismissal for default had become final. He also held that the fact that the order confirming sale was not set aside would not stand in his way of disposing of the applications on their merits as the effect of setting aside the orders of dismissal for default was that the confirmation of the sale was automatically set aside. On the merits he held that the word interest referred to in the consent order related only to the interest due to the decree-holder, that no interest was payable to the auction purchasers as they were compensated by payment of commission and that the amount deposited in Court was in excess of the correct amount.

3. These appeals and revisions are by the two auction purchasers other than the decree-holder who is also an auction purchaser.

4. The main ground of attack by the appellants is that the learned District Judge had no jurisdiction to set aside the order of dismissal for default. But the first respondent contends that they were precluded from raising this objection as those orders restoring the petitions had become final.

5. In Alagappa Ghetty v. Annamalai Chetty (1916) 4 L.W. 411, it was held that the principle of Section 105 of the Code of Civil Procedure would apply not only to decrees and interlocutory orders which lead up to the final order. In Radha Mohan Datt v. Abbas Alt Biswas I.L.R. (1931) All. 612 , a Full Bench of the Allahabad High Court held that the words "affecting the decision of case" in Section 105 of the Code of Civil Procedure are equivalent to "affecting the merits of the case" and that the correctness of an order cannot be challenged in an appeal against the decree unless the order affected the case on its merits and that an order setting aside an ex parte decree is not one that affects the case on merits but merely ensures a re-hearing of the case on merits. In Athamsa Rowther v. Ganesan AIR1924Mad890 , a Bench of this Court observed:

It seems to us that the present case is another in which an order setting aside an ex parts decree may be properly attacked. It is clear that, when the result of the setting.aside of the order has been the hearing of the suit de novo on its merits, no injustice would be done to any one by the decision of the case and the final result is not affected.

In such circumstances we cannot but hold that an order setting aside the ex parte final decree while retaining the ex parte preliminary decree as an order affecting the decision of the case. In Venkatanarasu v. Kotayya (1926)51MLJ119 , a Letters Patent Appeal, a Bench of this Court held