Storr J:

This was an appeal from an Order of the District Judge, Perak South, made on 18 August 1948, on application by the Appellant under s. 127, Civil Procedure Code, to set aside the judgment, obtained ex parte against the second Respondent, dated 11 June 1948, and the consequent Warrant of Ejectment dated 12 June 1948, in District Court Civil Suit No. 2/48. The grounds of the application were set out in an affidavit by the Appellant dated 18 June 1948.These were that the Appellant was in fact the real Defendant in District Court Civil Suit No. 28/48 and the tenant of the first Respondent, and not the second Respondent against whom the judgment was entered, being her former husband.The learned District Judge dismissed the application on the grounds that the Summons was duly served on the Defendant (second Respondent) named in the Summons by the Plaintiff (first Respondent) pointing him out to the Process Server and that only a Defendant to a suit could apply under s. 127, Civil Procedure Code, to set aside an ex parte decree and not just any person who might be interested in the suit.

Mr. SK Das (Mr Tan Cheng Hock with him) appeared for the Appellant and argued that before the District Judge came to any decision on the application under s. 127, Civil Procedure Code, he should have decided the issue as to whether or not the Appellant was the tenant have been served as the Defendant or not, and, if she was so found to have set aside the decree, but in any event the Appellant being a person interested in the suit was entitled to have the ex parte decree set aside under s. 127, Civil Procedure Code, and the Order of the District Judge was wrong.He cited the following cases in support of his submission: Debendra Narain Sinha v. Narendra Narain Sinha 24 Cal WN 110 at p. 116, Jacques v. Harrison (188) 12 QBD 165 and Bacha Sham Sunder Keur & Ors. v. Balgobind Singh AIR [1930] Patna 323.Finally, he submitted that under s. 597, Civil Procedure Code, the Court had inherent powers to do that which would ensure that justice was done.

Mr. Mahendran, who appeared for the first Respondent, submitted that the Order of the District Judge was correct not only as to his ruling that s. 127, Civil Procedure Code, only applied to a Defendant and not to any party interested in the suit, but also on the facts before him.

The second Respondent, the Defendant in District Court Civil Suit No. 28/48, though served, did not appear.

The main question raised in this appeal is whether the Appellant had the right, as a person interested in the suit but not a party to it, to apply under s. 127, Civil Procedure Code, to set aside the ex parte decree against the second Respondent.

I have considered the cases cited by Mr. Das but they are distinguishable from the present case and do not relate to applications under Indian O. 9 r. 13 (Civil Procedure Code s. 127).

Bacha Sham sunder Keur & Ors. v. Balgobind Singh AIR [1930] Patna 323 was a case in which there was evidence that the person applying to be joined as a party under O. 1 r. 10 (Civil Procedure Code s. 24) had in fact became the tenant of the landlord with his consent, but in the present case there is no such evidence, neither was there any application under s. 24, Civil Procedure Code.

Debendra Narain Sinha v. Narendra Narain Sinha 24 Cal WN 110 at p. 116 was a case in which the Court allowed Defendants/Respondents to become Plaintiffs/Appellants in an appeal and based its decision on O. 1 r. 10 (Civil Procedure Code s. 24).

Jacques v. Harrison [1884] 12 QBD 165 was a case in which the Court allowed a person interested in a suit to intervene to get an ex parte decree set aside.That case was based upon the English O. XXVII r. 15 which reads:

Any judgment by default, whether under this Order or under any other of these rules, may be set aside by the Court or a Judge upon such terms as to costs or otherwise as such Court of Judge may think fit.

But that is different to our s. 127, Civil Procedu