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Issues: (i) Whether, after a remand or stay and resumption of proceedings, it was the duty of the Court to inform the parties of the date of hearing. (ii) Whether the ex parte decree was liable to be set aside under Order 9, Rule 13 of the Code of Civil Procedure, 1908, having regard to the service position, limitation, and the defendant's alleged default.
Issue (i): Whether, after a remand or stay and resumption of proceedings, it was the duty of the Court to inform the parties of the date of hearing.
Analysis: Where proceedings are interrupted by stay and later resume, the hearing does not continue in the ordinary course. In such a situation, a litigant cannot be expected to keep enquiring daily about the date of hearing. The Court relied on the principle that when a suit is adjourned or restored for further hearing, notice of the fixed date must be communicated to the parties or their representatives. Mere maintenance of court registers does not shift that duty to the parties, and failure to inform them deprives the absent party of being bound by the proceedings.
Conclusion: The duty to communicate the resumed date of hearing rested on the Court, and the defendant was not bound to discover it on his own.
Issue (ii): Whether the ex parte decree was liable to be set aside under Order 9, Rule 13 of the Code of Civil Procedure, 1908, having regard to the service position, limitation, and the defendant's alleged default.
Analysis: Although the defendant had been served at the commencement of the suit, the later hearing after the return of the record from the High Court required fresh intimation. The substituted service relied upon was not treated as conclusive for the purpose of an application under Order 9, Rule 13, because the Court could still examine whether the defendant had in fact been duly served. On the facts, there was no reliable proof that the defendant knew the date of hearing, and the circumstances did not establish wilful neglect or default. In such circumstances, the proviso inserted by the High Court did not bar relief, and the application was not defeated by limitation or by alleged constructive knowledge.
Conclusion: The ex parte decree was liable to be set aside, and the revision was maintainable and deserved to succeed.
Final Conclusion: The order refusing to set aside the ex parte decree was interfered with, the ex parte decree was vacated on terms, and the suit was directed to go back for decision on merits.
Ratio Decidendi: Where a suit resumes after interruption by stay or remand, the Court must communicate the next date of hearing to the parties, and an ex parte decree may be set aside if the defendant was not duly informed and no wilful neglect is established.
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