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Civil Revision Case No. 1 of 1959, decided on 22nd May, 1959.
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-------S. 115‑"In which no appeal lies thereto"‑Means, in which no appeal lies to the High Court.
It is only those cases in which an appeal lies to, the High Court that an application for revision is incomplete. Where the appeal lay to the District Judge and the fact that it was not presented there would be nor bar to High Court entertaining an application for revision under section 115 of the Civil Procedure Code 1908.
M. E. Rana for Petitioner.
Muhammad Saleem Aslam Pirzada for Respondent.
A decree for Rs. 3,000 odd was passed against Ghulam Shahbaz Shah by Malik Nazir Ahmad, Sub‑Judge 2nd Class, Liaqatpur, on the l7th June 1958. On the 15th July 1958 an application was made by Ghulam Shalibaz Shah for setting aside of the ex parte decree but by that time Malik Nazir Ahmad, Sub‑Judge 2nd Class, had been transferred from Liaqatpur and his successor had not taken over. As there was no presiding officer present, the reader of the Court fixed the 8th September 1958 for consideration of the application for the setting aside of the ex‑parte decree. In the meantime, Malik Aziz Ahmad, Sub‑Judge of the 3rd Class, took over at Liaqatpur on the 8th September 1958. He called for a report from the office regarding the application for setting aside of the ex parte decree and fixed the 4th of October 1958 for further proceedings in the case. The report called for by Mr. Aziz Ahmad was to the effect that the application prayed for setting aside of an ex parte decree in a suit for recovery of over Rs. 3,000. On the 4th October 1958 no one appeared to prosecute the application for setting aside of the ex parte decree and Mr. Aziz Ahmad, Sub‑Judge 3rd Class, dismissed it for default. On the 9th October 1958, an application was put in by Ghulam Nabi, the Mukhtar of the defendant, that as his absence on the 4th October 1958, was not intentional, the proceedings regarding the setting aside of the ex‑parte decree should be revived. This application was dismissed by Mr. Aziz Ahmad by his order dated the 10th October 1958 against which the present petition for revision has been put in.
2. The learned counsel for the respondent urged that as an appeal lay under Order XLIII, rule 1 (d) of the Code of Civil Procedure from the order refusing to set aside the ex parte decree and no appeal had been instituted, this petition for revision was incompetent. This argument is without force because the appeal lay to the District Judge and the fact that it was not presented there would be no bar to this Court entertaining an application for revision under section 115 of the Code of Civil Procedure, because it is only in those cases in which an appeal lies to this Court that an application for revision is incompetent.
3. After hearing the learned counsel for the parties, I have arrived at the conclusion that this petition must succeed. The ex parte decree was passed by a Sub‑Judge of the 2nd Class and as it was for a sum exceeding Rs. 2,000 it could not have been set aside by Mr. Aziz Ahmad who being a Sub‑Judge of the 3rd Class could not hear suits whose value for jurisdiction exceeded Rs.2,000. As Mr. Aziz Ahmad was incompetent to hear the application, his order dated the 4th October 1958, whereby the application for setting aside the ex parte decree was dismissed, was a nullity and no application to set it aside being necessary the application put in by the petitioner on the 9th October 1958 was redundant and the order dated the 10th October 1958, of which the petitioner seeks revision, without any binding force.
4. In view of what I have said above, I accept the petition for revision and direct the Sub‑Judge, Liaqatpur, to send the case to the District Judge, Rahimyarkhan, so that it may be entrusted for disposal to a Court of competent jurisdiction. The Sub‑Judge, to whom the District Judge sends the case for disposal, will hear the petitioner and pass orders that he may deem just and proper. As the petitioner could have applied for transfer of the application for setting aside the ex parte decree but did not do so, I leave the parties to bear their own costs of this petition.
K. B. A./A. H. Petition accepted.
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