The inherent powers of the court under Section 151 of the CPC cannot be invoked to set aside an ex parte decree when the defendant has failed to establish sufficient cause under Order 9, Rule 13 of the CPC.

R. N. MISRA, J.

( 1 ) THESE appeals under the Orissa High Court Order are directed against the judgment of a learned single Judge in two miscellaneous appeals under Order 43, Rule 1 (d) of the Code of Civil Procedure (hereafter called the Code) arising out of proceedings under Order 9, Rule 13 of the Code. When the appeals were placed before a Division Bench, it directed that both the matters be placed before a larger Bench.

( 2 ) MONEY Suit No. 339 of 1970 was filed by the appellant in the Court of the learned Subordinate Judge at Cuttack for recovery of Rs. 4,97,417. 08 paise on the plea that appellant as principal had supplied goods to the defendants, a partnership firm and two of its partners, on credit and they had failed to pay the price of the goods. Defendants entered contest but ultimately suffered an ex parte decree. Two separate applications--one by defendants 1 and 3 and the other by the second defendant of the suit -- were filed under Order 9, Rule 13 of the Code read with Section 151 thereof for setting aside the ex parte decree. These applications were registered as Miscellaneous Cases Nos. 19 and 20 of 1975. On 25-11-1975, the learned trial Judge rejected both the applications. Therefore, two separate appeals were carried to this Court being Miscellaneous appeals Nos. 191 and 203 of 1975. Both these appeals were heard together and were disposed of by a learned single Judge by common judgment reported in (1976) 42 Cut LT 1061 (Bhagwandas Bajoria v. E. I. D. Parry Ltd.) The learned single Judge dealt with the evidence on record at length and examined existence of sufficient cause for the absence of the defendants separately. In paragraph 5 of his judgment, the learned single Judge came to the conclusion :-

". . . . . . . . On a perusal of the evidence on record and in view of the distinct advantage of the Court below to mark the demeanour of the witnesses examined before it, it becomes difficult for me to go against the finding of the Court below that the petitioner (defendant No. 2)has not been able to establish his case of illness on the date of hearing. " it may be pointed out that the plea of illness was of defendant No. 2 who was said to be representing the firm--defendant No. 1. In Para. 6, the learned single judge again came to hold :-"on a perusal of the evidence adduced on behalf of the petitioners in misc. Case No. 20/75 I am of

the opinion that the evidence of illness of defendant No. 3 is not of a satisfactory and convincing nature, and so I am not inclined to interfere with the finding of the Court below that the petitioners could not establish the case of illness of defendant no. 3 in this case. "

Thus, the learned single Judge recorded a clear finding that existence of sufficient cause: viz. , illness of defendant No. 2 as also of defendant No. 3 on the date of hearing had not been established and, therefore, the defendants failed to prove existence of sufficient cause for their absence from the Court on the date of trial. Notwithstanding such a finding, the learned single Judge took the view that provision of Section 151 of the Code was applicable and held :--

"my view, that in order to do justice in a suitable case an ex parte decree can he set aside or a suit dismissed ex parte can be restored for hearing by invoking the powers under Section 151, Civil Procedure code even though the requirement of 'sufficient cause' as provided under Rules 9 and 13 of Order 9, Civil Procedure Code is not complied with gets full support from the above-mentioned decisions. Once the requirements for setting aside the ex parte decree laid down in Order 9, Rule 13, Civil Procedure Code are satisfied, the Court 'shall', and it has no other way but to set aside the ex parte decree and restore the suit for a fresh hearing. Therefore, the satisfaction of the requirements of Order 9, Rule 13, Civil Procedure Code binds the court in a compulsory manner to set aside the ex parte decree. But apart from such compelling reaso