JUDGMENT

1. This is an appeal from an order refusing to set aside an ex parte decree and arises under the following circumstances:

2. Ghulam Qadir and Sons sued the firm Seth Khuda Baksh and Sons for the recovery of Rs. 5,234-5-0 being the price of goods which had been supplied by the defendants to the plaintiffs and were found to be defective in certain respects. The suit was instituted on the 13th July, 1921. On the 17th August, 1921 written pleas were filed by the defendants and one of the questions raised was that the Court at Sialkot had no jurisdiction to hear the suit. The Court thereupon framed the following issue relating to the question of jurisdiction:

Has this Court no jurisdiction to try the suit?

3. The Court described this issue to be a preliminary issue. After having framed the issue the Court fixed the 4th November, 1921, for evidence. Clearly, the Court fixed this date for evidence on this particular issue. On this date the defendants did not appear and the hearing was adjourned to the 24th November, 1921, and the defendants were ordered to pay Rs. 40 as damages to the opposite side. On the 24th November, 1921, the adjourned date, both parties gave evidence on the preliminary issue.

4. The 10th of December, 1921, was fixed for arguments. The defendants, however, did not appear on this date. The decision on the preliminary issue, therefore, might have been given ex parte against the defendants. But, curiously enough, the learned Judge allowed the plaintiff to go into the witness-box and give evidence in his favour supporting the claim put forward in the plaint. After recording the evidence the Court forthwith proceeded to decide the suit without framing any further issues and without giving parties an opportunity to produce evidence. It, however, decided the question of jurisdiction in favour of the plaintiffs and held that the suit was cognizable by a Court at Sialkot. On the merits the Court held in favour of the plaintiff and granted him a decree. The defendants applied, on the 4th December 1921, under Order 9, Rule 13, Civil Procedure Code, for the setting aside of this decree on the ground that Muhammad Sharif, the managing member of the firm, was ill and could not attend on the date of hearing. This application for the setting aside of the ex parte decree has been rejected by the Court below by an order, dated the 19th January, 1922, and it is against this order that the present appeal has been preferred. Without going into the merits of the allegation as to whether the defendant Muhammad Shariff had actually fallen ill or not, I must hold that the ex parte decree ought, not to have been passed under the circumstances disclosed by the record. The 10th of December, 1921, was not fixed for the decision of the case and, therefore, no ex parte decree could have been passed in favour of the plaintiffs against the defendants on the merits. Dr. Narang has argued that I should not interfere with the order of the Court below in this particular case, because the appellant, after filing this miscellaneous appeal, has filed a regular appeal against the ex parte decree also. The learned Counsel, however, has not shown me any authority on this point and I do not see how the fact of an appeal from a decree being filed can affect the present appeal. The appellant was entitled to apply for the setting aside of the decree and he had a right to appeal against the order rejecting his application.

5. A second point is urged by Dr. Narang that at least the decision on the question of jurisdiction must be considered to be final and that I should direct the Court below to treat this question as decided. But the question that I have to decide in the present appeal is whether this ex parte decree should be set aside or not, and I am concerned with this question alone. I have already held that, under the circumstances of this case, the Court was not justified in passing the ex parte decree.

6. I, therefore, accept the appeal and reversin