( 1 ) THIS is a first appeal from order by the State of Uttar Pradesh.

( 2 ) IT appears that a suit was filed against the Uttar Pradesh Government by one Shib Saran agarwal. That suit was decreed ex parte. An application for setting aside the ex parte decree and for restoring the suit was made by the Uttar Pradesh Government. The application was made beyond 90 days of the date of the decree, which is the period of limitation for making an application to set aside an ex parte decree. But the applicant made an allegation of fraud against himself by the opposite party and thus tried to save limitation under Section 18 of the Limitation act. The learned court below went into the question of fraud and gave a finding that no fraud had been proved. It, therefore, held that the restoration application was barred by limitation and had to be dismissed.

( 3 ) LEARNED counsel for the State of Uttar Pradesh tried to argue before us, without much conviction, that fraud had been established. But, for the reasons given by the learned Judge, we are convinced that fraud was not established in this case. We have ourselves perused the evidence and we feel that the finding of the learned Judge is wholly justified. Since learned counsel was not able to establish fraud upon the evidence and get over the difficulty of limitation, he contended that the court below could have set aside the ex parte decree in any case, under its inherent powers and he asked that the ex parte decree should be set aside under the courts inherent powers.

( 4 ) THE first question, therefore, which we have to examine is whether independently of the provisions of Order 9, Rule 13, C. P. C. , under which provision an application for setting aside an ex parte decree has to be made, the court is entitled to set aside, an ex parte decree under its inherent powers. We may first point out that this question should be approached, keeping in view the observations made by their Lordships of the Supreme Court, in the case of Manilal Mohanlal shah v. Sardar Sayed Ahmed, AIR 1954 SC 349, in dealing with a case under Order 21, Rule 85, c. P. C. , that the inherent powers of the court should not be invoked to circumvent the mandatory provisions of the Code, and in that case to relieve the auction-purchasers of their obligations to make the deposit of purchase money under Order 21, Rule 85, C. P. C. The general aspect of the observation would seem also to apply in the instant case.

( 5 ) BUT we have been pressed in this case with a ruling of our own Court in the case of Lalta prasad v. Ram Karan, ILR 34 All 426, which was given in the year 1912 by a Bench consisting of Mr. Justice Karamat Husain and Mr. Justice Tudball. There a suit had been dismissed under order 9, Rule 8, C. P. C. and the plaintiff had applied for restoration, filing an affidavit that he was lying, on the day of hearing, in the chamber of his pleader Babu Munna Lal with a bad leg, waiting to be informed of his case having come up and Babu Munna Lal had also filed ah affidavit to the effect that ho had conceived the Judge to have fixed two Oclock for this case and so had started another case in the court of the Additional Subordinate Judge. The trial court, where the restoration application was made, held that the plaintiff had another pleader besides Babu Munna Lal and he could have informed by any of his pleaders clerks within the twenty minutes that the court was waiting. Accordingly the application for restoration was rejected. The plaintiff came up in appeal to this Court and it was urged by his counsel, as will appear from the report of arguments, that the case was one of mis-apprehension, and that the plaintiffs negligence was due to the common and natural reluctance of parties to appear unrepresented in a court. It was submitted that the affidavit filed disclosed a sufficient cause for setting aside the order under Order 9, Rule 8 and in any case under the Courts inherent powers. It was in this connection