An application to set aside an ex parte order is maintainable even before the delivery of judgment, and the provisions of Order IX Rule 13, C.P.C. come into play only after the delivery of judgment.

Tarun Agarwala, J.—This revision has been filed by the plaintiff challenging the correctness of the order passed by the Judge Small Cause Court allowing the defendant’s application for setting aside the ex parte order.

2. In order to appreciate the controversy involved in the present case, it is necessary to narrate the brief facts of this case. It transpires that 21.5.1987 was fixed for evidence, on which date the defendant did not appear and the plaintiff was present. Accordingly, the Court passed an order to proceed ex parte against the defendant. It further transpires that the Court proceeded to hear the case and in support of his case, the plaintiff filed his affidavit as evidence. Before the judgment could be delivered, the defendant appeared and moved an application along with an affidavit praying that the order directing the case to proceed ex parte be recalled in the interest of justice. An objection on this application was filed by the plaintiff and the matter was adjourned to 4th July, 1988, for disposal of the defendant’s application. On 4.7.1988, the defendant’s application was allowed and the order dated 21.5.1987, directing the case to proceed ex parte against the defendant was set aside.

3. The correctness of this order has been challenged by the plaintiff in this revision.

4. Heard Sri Vijay Bahadur, the learned counsel for the plaintiff. No one appeared on behalf of defendant.

5. The learned counsel for the plaintiff submitted that once the order had been passed to proceed ex parte and only the judgment was to be delivered, the application of the defendant to set aside the ex parte order was premature and was also not maintainable inasmuch as only an application to set aside the decree, if any, could be made under Order IX Rule 13, C.P.C. after the decree was passed. In support of his submission the learned counsel placed reliance on a decision of the Supreme Court in Arjun Singh v. Mahendra Kumar, AIR 1964 SC 993.

6. In my view, the contention of the learned counsel for the plaintiff, though attractive, is not applicable in the present facts and circumstances of the case.

7. On 21.5.1987, the Court ordered to proceed ex parte due to the absence of the defendant. This order had been passed under Order IX Rule 6, C.P.C. which reads as under :

“6. Procedure when only plaintiff appears.—(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then :

(a) When summons duly served.—If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte.”

Order IX Rule 7 reads as under :

“7. Procedure where defendant appears on day of

adjourned hearing and assigns good cause for previous non-appearance.—Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon, such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.”

8. In Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, the provision of Order IX Rule 6 and Rule 7 were explained and analyzed by the Supreme Court as under :

“When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ‘ex parte’ order.

Of course the fact that it is proceeding ‘ex parte’ will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ‘ex parte’ decree or other ‘ex parte’ order which the Court is authorised to make. All that Rule 6 (1) (a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the