ORDER

This petition is filed by the plaintiff being aggrieved of the order dated 09.11.2019 passed in Civil Suit No.71-A/2015 by learned 18th Civil Judge, Class - I, Jabalpur allowing an application under Order 9 Rule 7 of the CPC read with Section 151 of the CPC filed by the defendants for setting aside the ex parte proceeding.

Shri Swapnil Paliwal, learned counsel for the petitioner submits that the matter was heard and was reserved for judgment and, therefore, an application under Order 9 Rule 7 read with Section 151 of the CPC was not maintainable.

Reliance is placed on the judgment of Hon'ble the Supreme Court in the case of Arjun Singh v. Mohindra Kumar and Others, AIR 1964 SC 993. Reading from paragraph 17 of the said judgment, it is submitted that principle of res judicata would have been applicable and, therefore, the trial Court was not entitled to hear and decide the application under Order 9 Rule 7 of the CPC and thus, the impugned order suffers from vice of illegality and should be set aside.

Shri Devendra Kumar Shukla, learned counsel for the defendants, in turn, submits that since the judgment and decree were not passed, the only option which was available to the defendants was to move an application under Order 9 Rule 7 of the CPC. Order 9 Rule 13 of the CPC would have been applicable only when the judgment and decree were passed against the defendants.

After hearing learned counsel for the parties and going through the record, it is evident that paragraph 17 of the aforesaid decision deals with a situation where an application under Order 9 Rule 7 of the CPC was disposed of, and Hon'ble the Supreme Court held that those findings will act as a res judicata in a subsequent application filed to set aside the decree under Order 9 Rule 13 of the CPC. For this reasoning is given in paragraph 17 of the decision in Arjun Singh (supra). In the present case, since there is no issue of res judicata and only issue is that which provision of law will be applicable at the time of receiving an application before passing of the judgment and decree, this Court has no hesitation to hold that provisions contained in Order 9 Rule 7 of the CPC will be applicable and the impugned order is rightly passed. Therefore, the judgment in the case of Arjun Singh (supra) having no application, will not come to any aid to the petitioner.

Accordingly, the petition fails and is hereby dismissed.

VIVEK AGARWAL) JUDGE JUDGE ks