Order IX Rule 7 refusal does not bar later ex parte decree challenge under Order IX Rule 13

An order refusing a defendant permission to resume participation under Order IX Rule 7 is an interlocutory step and does not finally determine rights, so it does not operate as res judicata against a later application under Order IX Rule 13 to set aside an ex parte decree. The court's inherent power under Section 151 cannot be used to create a parallel remedy where the Code already provides a complete procedural scheme, and it cannot validate an incompetent earlier application. A decree passed after the suit was heard ex parte, and not on satisfaction of the conditions in Order XVII Rule 3, remains an ex parte decree rather than a decree on merits.

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Issues: (i) Whether a refusal to permit the defendant to resume participation in the suit under Order IX, Rule 7 of the Code of Civil Procedure, 1908 operated as res judicata against an application under Order IX, Rule 13 for setting aside the ex parte decree; (ii) whether the earlier application could be sustained on inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908 so as to bar the later application; and (iii) whether the decree was in truth a decree on merits under Order XVII, Rule 3 of the Code of Civil Procedure, 1908 rather than an ex parte decree.

Issue (i): Whether a refusal to permit the defendant to resume participation in the suit under Order IX, Rule 7 of the Code of Civil Procedure, 1908 operated as res judicata against an application under Order IX, Rule 13 for setting aside the ex parte decree.

Analysis: The earlier proceeding under Order IX, Rule 7 was only a summary interlocutory step meant to regulate the conduct of the trial and did not finally decide any issue in controversy between the parties. The Code treats the two stages differently: if the defendant appears before an ex parte decree is passed, he may seek to participate from the stage reached, but after a decree is passed the specific remedy is under Order IX, Rule 13. An order under Order IX, Rule 7 does not attain the kind of finality that attracts res judicata in relation to a later application to set aside an ex parte decree.

Conclusion: The earlier Order IX, Rule 7 order did not bar reconsideration under Order IX, Rule 13.

Issue (ii): Whether the earlier application could be sustained on inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908 so as to bar the later application.

Analysis: The inherent powers of the court cannot be invoked to override an express and complete procedural scheme. The Code specifically provides for the situations of non-appearance before hearing, appearance after adjournment, and setting aside an ex parte decree. Where the hearing had already concluded and only judgment remained to be pronounced, there was no scope for resort to Section 151 to create a parallel remedy outside Order IX, Rule 7. Accordingly, the earlier application could not be treated as a competent proceeding capable of creating a res judicata bar.

Conclusion: Section 151 did not validate the earlier application, and no bar arose on that basis.

Issue (iii): Whether the decree was in truth a decree on merits under Order XVII, Rule 3 of the Code of Civil Procedure, 1908 rather than an ex parte decree.

Analysis: Order XVII, Rule 3 applies only where time has been granted to a party to do a specific act necessary for the further progress of the suit and the party defaults in that respect. On the facts, the suit had already been heard, the defendant was absent, the court proceeded ex parte, and the later judgment expressly described the decree as ex parte. The conditions of Order XVII, Rule 3 were not satisfied, and the decree was not one on merits.

Conclusion: The decree was an ex parte decree and not a decree on merits under Order XVII, Rule 3.

Final Conclusion: The defendant was entitled to have the application under Order IX, Rule 13 heard on merits, and the matter was remitted for that purpose.

Ratio Decidendi: An interlocutory order made under Order IX, Rule 7 after the hearing of the suit has concluded does not finally determine the parties' rights and therefore does not operate as res judicata against a subsequent application under Order IX, Rule 13 to set aside an ex parte decree; the inherent powers under Section 151 cannot be used to create a parallel remedy where the Code provides a complete procedure.

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