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Appeal from Original Order No. 92 of 1963, decided on 29th June 1965.

, O. IX, r. 13‑Provisions applicable to proceedings in suit arising out of award made by Arbitrators.

Roshan Lal Marwari and others v. Firm of Bridhi Chan Sri Lal A I R 1924 Pat. 603 distinguished.

O. IX, r. 13 & O. XVII, r. 3--Whether provisions of O. IX, r. 13 applicable in case covered by D. XVII, r. 3 (Quaere).

, O. XVII, r. 3 Provisions of rule 3 contemplate, not general but special adjourn ment, for some reasons‑Case adjourned not at instance of any party but because of preoccupation of Court‑Adjournment cannot be said‑to have been made under O. XVIL r. 3.

A. S. M. Shamsuzzaman for Appellant.

Kamaluddin Hussain for Respondent.

‑This appeal is directed against the judgment and order rejecting the appellant's application under Order IX, rule 13, of the Code of Civil Procedure for restoration of the suit to file after‑ setting aside the ex parte decree.

The ex parte decree was passed on 19‑5‑62 and the application under Order IX, rule 13 of the Code of Civil Procedure was filed on 16‑6‑62, stating inter alia that Md. Tasiruddin Shah, Managing partner of the firm of the petitioner had been all along making tadbir in the suit; that the said Tadbirkar Md. Tasiruddin Shah went to Rangpur town for his personal business where he fell ill on 16‑5‑62, of severe pain over the Inguinal Hernia and also pain in fistulatinano; that he was examined by the Medical Officer, Government Hospital, Rangpur, on 17‑5‑62, and was advised complete rest for a week; that the said Tadbirkar being an old man and ill totally forgot to send instruction to his lawyer and accordingly the defendant could not be present oil the date of hearing of the suit. Along with the application a certificate granted by the doctor Ashak Ali M. B. was attached which supported the case of the petitioner.

As against that the decree‑holder filed objection challenging the statements in the application for restoration of the suit. When the matter came up for hearing Md. Tasiruddin Shah examined himself on behalf of the petitioner and none was examined on behalf of the decree‑holder. The learned Subordinate Judge, being of opinion that there was no evidence in proof of the allegation that the petitioner fell gill and that it was not disclosed in the petition that the petitioner asked for shifting of the peremptory date, rejected the application. Hence this appeal.

From the application under Order IX, rule ‑13, of the Code of Civil Procedure, we find a clear statement that as Md. Tasiruddin Shah the Tadbirkar fell ill at Rangpur, he could not come to Court due to his illness and also he forgot about the case due to his illness and old age. In his evidence Md. Tasiruddin Shah has asserted that he had an attack of Inguinal Hernia and pain in fistulatinano and was under the treatment of Dr. Ashak Ali of Rangpur and that he could not give instruction to his lawyer. This assertion in chief has not been at all challenged by the opposite‑party while cross‑examining him. From the aforesaid evidence we are satisfied that Md. Tasiruddin Shah fell ill on the relevant date and that due to illness and old age he could not instruct his lawyer to take steps for adjournment of the case or appear before Court on the date of hearing of the suit. We accordingly find that the decision arrived at by the learned Subordinate Judge is not correct. We accordingly, find that the petitioner has been able to make out a case under Order IX, rule 13, and he is entitled to get the suit restored to file after setting aside the ex parte decree.

Being faced with this situation, the learned Advocate for the respondent has contended that, in view of the fact that the suit in question arises in connection with an Award passed by the Tribunal and in view of the fact that the objections were filed by both the parties, the case comes under Order XVII of Rule 3 of the Code of Civil ‑Procedure and accordingly there could not be any application under Order IX, rule 13 of the Code. He has also relied in support of his contention, on the case of Roshan Lot Marwari and others v. Firm of Bridhi Chan Sri Lal (A I R 1924 Pat. 603).

The above grounds require investigation of the provisions of Arbitration Act and the Code of Civil Procedure. Section 41 of the Arbitration Act has provided that subject to the provisions of the Arbitration Act, and the Rules made thereunder, the provisions of the Code of Civil Procedure, 1908; shall apply to all proceedings before the Court and to all appeals under this Act and the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court. From the aforesaid provisions of section 41 the Arbitration Act, we find that the Code of Civil Procedure shall apply subject to the provisions of the Arbitration Act and the Rules made thereunder. No provisions of the Act or any rule made thereunder have been shown to us which can stand against the application of the provisions of Order IX, rule 13, of f the, Code of Civil Procedure to the proceedings in a suit arising out of an Award made by the Arbitrators.

Rule 6, Order IX, of the Code of Civil Procedure provides under what circumstances an ex parte decree can be passed. Order IX, rule 13, provides that, in any case, in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside provided he can satisfy the Court that the summons was not duly served on him or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. In the present case, petitioner has been able to prove that he could not come to the Court on the date of hearing as he was prevented by his illness from attending the Court on that date and also taking any‑step.

Mr. Kamaluddin Hussain the learned Advocate for the respondent has contended that the provision of Order IX, rule 13 cannot apply to the facts of the present case but that of Order XVII, rule 3 of the Code of Civil Procedure. In order to appreciate his argument it is necessary to take into consideration the other provisions of Order XVII of the Code. Order XVII, rule 1, sub‑rule (1), provides that a Court may grant adjournment of the hearing if sufficient cause is shown at any stage of the suit from time to time. Sub‑rule (2), of the said Rule provides that in every such case the Court shall fix for further hearing of the suit and may make such order as it thinks fit with respect to the costs occasioned by the adjournment. A look to the proviso, of this Rule will go to show that when the hearing of evidence has begun, the hearing of the suit shall continue from day to day until all the witnesses in attendance have been examined unless the Court finds adjournment of the hearing beyond the following day 'to be necessary for the reasons to be recorded. So the provisions of rule 1, Order XVII, provide for general adjournment and also adjournment in particular circum stances even when the hearing of evidence has once begun.

Rule 2 of Order XVII, provides that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX, or make such other order as it thinks fit. So the provisions of rule 2, indicate that even when an adjournment is made under Order XVII, rule 1, on the date fixed 'for hearing after the adjournment, the Court may proceed to dispose of the suit in any of the modes directed in that behalf by Order IX or make such other order as it thinks fit. So the provisions of Order IX, rule 13,' have not been excluded from the operation apparently in a case, even when the hearing of evidence has once begun.

Order XVII, rule 3, provides: "Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may notwithstanding such default, proceed to decide the suit forthwith." The provisions of this Rule indicate that the adjournment as contemplated in this Rule is not a general adjournment but special adjournment for some reasons. In our opinion, without expressing our views whether in a case covered by rule 3, the provisions of Order IX, rule 13, would be applicable or not, we can observe here that in the facts and circumstances of the case, the provisions of rule 3 of Order XVII, has no application as will be seen from the facts enumerated below.

On 15‑2‑62 and 31‑3‑62, both the parties filed Hajiras in the case but the Court adjourned the case as it was engaged for hearing Sessions Case. The next peremptory date of hearing on 19‑5‑62 was not also at the instance of any of the parties but on account of preoccupation of the Court for hearing, Sessions case. So the date that was fixed on 19‑5‑62, was no on the prayer of any of the parties, nor was for producing evidence or causing attendance of witnesses or performing any other act necessary to the further progress of the suit and accordingly in our opinion, the provisions of rule 3, Order XVII has no application to the present case.

Next it has been argued by the learned Advocate for the respondent that, in view of the provisions of section 33 of the Arbitration Act that the question should be disposed of on affidavit and as affidavits were filed before the Court, the provisions of Order XVII, rule 3, will apply. We do not also find any substance in this contention:.

Section 33 of the Arbitration Act provides that the validity of the arbitration or an award can be determined on the affidavits provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also. In the present case though according to the respondent's contention, affidavits were filed by both the parties but we do not find any discussion of and adjudication on the affidavits filed by the parties by the learned Subordinate Judge while decreeing the suit ex parte. We quote the ex parte order which will show that the affidavits were not at all considered though required under the above provisions of the Arbitration Act :

"19‑5‑62. Plaintiff files hazira. Defendant took no step and found absent on repeated calls. The learned lawyer for the defendant verbally submits that he has got no instructions."

C. F. correct

Order

that the suit be decreed ex parte in terms of the award which swill form part of the decree." .

Then again section 17 of the Arbitration Act provides:

"Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award."

Though section 17 of the Arbitration Act provides that a Court can pass an award after refusing any objection to the award 'but in this case the Court has failed to consider the objection filed. We do not also find that the learned Subordinate Judge has complied with the other provisions of section 17 of the Arbitration Act. Section 17 requires that before passing all award the Court shall determine first that there is no cause to remit an award or any of the matters referred to Arbitration for reconsideration or to set aside the award and thereafter the Court shall have to take into consideration such objection as filed, and after refusing the same shall proceed to pronounce judgment in accordance with the award. But we do not find that the learned Subordinate Judge while passing the ex parte decree has complied any of the provisions of this section with. I

Now coming to the decision relied on by the learned Advocate for the respondent, find that a Division Bench of the Patna High Court in A I R 1924 Pat. 603 observed that where an award was given by Arbitrators with the intervention of the Court and the defendants after filing objections were absent on an adjourned date and the Court passed the decree in terms of the award and dismissed the application under Order IX, rule 13, to set aside, the award, no appeal lay against such order and that section 104 (f) did not apply as the arbitration was through the intervention of the Court. In the present case the Arbitration was not through the intervention of the Court. , It has been claimed by the petitioner that no notice of the award was served on him. It is further seen that the objection has not been disposed of by learned Subordinate Judge as required by section 17 of the Arbitration Act. So, in our opinion, the case relied on by the learned Advocate for the respondent has no application in the facts and circumstances of the case.

Having regard to the facts and provisions of law, we are of opinion that the provision of Order IX, rule 13, will apply to the present case.

On the merits, we have already found that the petitioner has been able to make out a case under Order IX, rule 13, of the Code. We accordingly allow the appeal, set aside the judgment and order complained of and allow the application under Order IX, rule 13, of the Code and set aside the ex parte decree and restore the suit to file. We direct the learned Subordi nate Judge to proceed with the suit in accordance with law. Appellant will pay two Gold Mohors to the respondent as compensation.

‑I agree.

K. B. A. Appeal accepted.

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