JUDGMENT
M. Jagannadha Rao, C.J.
(1) This is an appeal preferred by the two appellants against the judgment of the learned single Judge dated 24.1.94 in I.A 2157/91 in Suit No. 1440 of 1983 granting a final decree for sale in a mortgage suit filed by the respondent (the Punjab & Sind Bank) under Order 34 Rule 5 of the Code of Civil Procedure.
(2) Under the impugned judgment dated 24.1.994 the learned Single Judge passed a final decree for sale under Order 34 Rule 5 of the Code of Civil Procedure with regard to the immovable property known as M- 47, Greater Kailash-I, New Delhi.
(3) This appeal preferred (otherwise than u/s 96 of the Code of Civil Procedure) under Section 10 of the Delhi High Court act is, in our opinion, incompetent for the appellants ought to have filed a regular first appeal (RFA) against the judgment and decree of the learned Single Judge paying the requisite court fee. Section 10 applies to appeals against orders which amount to ‘judgments’ and the provisions of Section 10 are analogous to the Letters Patent. But here, in as much as the judgment and final decree under Order 34 Rule 5 Civil Procedure Code are passed by the learned single Judge on the original side of the Court, an appeal ought to have been filed as a regular first appeal. The present appeal is incompetent.
(4) Even otherwise, on merits, we hold that the appeal is liable to be dismissed. The point raised in the case shows that the appellants who remained ex parte want the earlier evidence rendered before the ex parte decree to be excluded in spite of the Court having permitted the plaintiff to use the pre-ex parte preliminary- decree evidence as valid evidence after the ex parte decree was set aside.
(5) The respondent Bank filed the suit on foot of mortgage against the appellants in 1983 and oral evidence was taken on 24.7.84 and an ex parte preliminary decree was passed on 24.7.1984. Thereafter the appellant filed Ia 4743/84 for condensation of delay in seeking to set aside the ex parte decree. Issues were framed on 12.5.1988.
(6) Once again the appellants were set ex parte on 24.1.90 after their counsel filed Ia 1874/89 to discharge him from the case. The plaintiffs sought permission to use the pre – ex parte evidence and filed Ia 4876/90 to: “TAKE into consideration the unrebutted evidence recorded of the witnesses of the plaintiff on oath before this Hon’ble Court dated 24th July,1984 and dispense the plaintiff with filing fresh affidavit by way of evidence”.
(7) The said application was allowed on 6th July,1990, the matter was posted for arguments to 16.7.90 and on that day, arguments were heard and judgment reserved. Ex parte preliminary decree was passed by the learned single Judge on 7.8.1990. In the judgment at the stage of preliminary decree, the learned Judge set out all the above facts and referred to the order passed in Ia 4876/90 as stated above and thereafter he passed the fresh preliminary decree on 7.8.1990.
(8) At the stage of final decree, the plaintiff filed Ia 2157/91. Defendants were served-No body appeared and though time was granted suo moto for counter, as noted by the Dy.Registrar on 20,9.91, no counter was filed.
(9) On 13.1.92, counsel appeared for defendants and sought time to file reply. Time was granted on 3.4.92. Reply was filed. Then Ia 3259/92 was filed by defendants under Order 9 Rule 13 of the Code of Civil Procedure to set aside the second ex parte preliminary decree dated 7.8.90 and Ia 3258/92 was filed under Section 5 of the Limitation Act.
(10) On 28.8.92, none was present for appellants again. The IAs 2157/91, 3258/92 and 3259/92 were posted to 5.11.92, 11.12.92 and 15.4.93. On 15.4.93, the matter was called twice and no body appeared for defendants. They were adjourned to 25.5.93 and then to 29.9.93. Argument were heard on 29.9.93, 8.10.93, 3.11.93 and orders were passed dismissing the IAs 3258/92 and 3259/92 on 12.11.93. Apeal to Division Bench was dismissed on 4.1.94.
(11) Thereafter Ia 2157/91 for passing final decree was taken up on 12.11.93 and 6.1.94 and final decree was passed on 24.1.94 after hearing both sides and rejecting the contention of the appellants that the preliminary decree was a nullity and was not bad for using the evidence rendered before the first ex parte preliminary decree.
(12) In this appeal, it is contended for appellants – defendants that inasmuch as the final decree was passed on evidence recorded on 24.7.1984 at the stage when defendants were set ex parte, the said evidence could not be relied upon after the said ex parte decree dated 24.7.84 was set aside and preliminary decree is a nullity.
(13) On the other hand, it is contended for the respondent – plaintiff that this appeal under Section 10, of the Delhi High Court Act is not maintainable as a Regular first appeal against the decree ought to have been preferred. (On this aspect, we have already stated that this appeal is not maintainable). Counsel also contended that in view of the orders -passed in Ia 4876/90 dated 6.7.90, the evidence recorded before the passing of the ex parte decree was specifically treated as evidence and even after the setting aside of the decree, the appellants again remained ex parte once again, as stated earlier. The points for consideration are: (1) whether after the passing of the ex parte decree on 7.8.90 , the appellant could seek a declaration that it was a nullity because evidence recorded prior to the ex parte decree was relied upon , even though the plaintiff was specifically granted permission in Ia 4876/90 to treat the earlier evidence as evidence in the suit? (2) Whether Award of interest in the final decree on the principal amount in the suit is correct?
(14) From the detailed facts given earlier, it can be seen that initially appellants were set ex parte, evidence of plaintiff-respondent recorded on 24.7.84 and an ex parte preliminary decree was passed under Order 34 CPC. The said decree was set aside under Order 9 Rule 13 of Code of civil Procedure on 1.10.85. Issues were framed on 12.5.88. Once again the appellants were set ex parte on 24.1.90. Plaintiff’s counsel filed an Ia 4876/90 to permit the use of the evidence recorded earlier on 24.7.84. This. application of plaintiff was allowed on 6.7.90 and a fresh preliminary decree was passed on 7.8.90. In the preliminary decree all these facts were set out including the fact that Ia 4876/90 of plaintiff was allowed. Then plaintiff filed Ia 2157/91 for passing final decree. At that stage defendants filed Ia 3259/92 for setting aside preliminary decree and Ia 3258/92 for condoning delay. The court dismissed these applications on 12.11.93. In that order also, the learned Single Judge held: “…Iam of the view that the defendants cannot be permitted to urge this contention in these applications. Even otherwise, I find that this Court vide order dated 6th July,1990 had permitted the plaintiff/bank to rely upon the evidence recorded before setting aside the decree. In this connection reference may be made to a judgment of the Gujarat High Court in the case of Bharat Kumar Premchand(supra). ”
(15) Admittedly, an appeal was filed there from to a Division Bench and the same was dismissed on 4.1.94. ,
(16) Having raised the same point in the Ia 3259/92 filed Order 9 Rule 13 Cpc petition, and failed there and in further appeal to the Division Bench, the appellants are precluded by res judicata from raising the same point after the final decree was passed on 24.1.94 to Ia 2157/91.
(17) It is true that certain High Courts have taken the view that evidence recorded after defendants are set ex parte and before the ex parte decree cannot be used once the ex parte decree is set aside and fresh evidence has to be adduced vide Aziz Ahmed Khan vs.I.A.Patel ; Mst. Lakshmi Devi vs.Remington Co. and Phani Bhushan Mukherjee vs. Phani Bhushan Mukherjee and others . But the Full Bench of the Gujarat High Court took the opposite view in Bharat Kumar Premchand vs. M/s Motilal & Bharulal Gujarat 51 (FB). The learned Single -Judge followed the Gujarat view when he earlier dismissed the Order 9 Rule 13 application. That judgment was affirmed on appeal by the Division Bench.
(18) In this case, we find that the Court did not straight away use the earlier evidence recorded before ordering setting aside the ex parte decree. After the ex parte decree was set aside, the plaintiff filed Ia 4876/90 to treat the said evidence as relevant evidence in the suit and it was allowed on 6.7.90. That order has also became final. The defendants having , remained ex parte a second time on 24.1.90 and not challenged the order dated 6.7.90, they cannot be permitted to raise the same question now after the final decree is passed.. This very point was as already stated raised in Ia 3259/92 filed for setting aside the ex parte preliminary decree and the learned single judge relied upon the order in Ia 4876/90 and the Gujrat Full Bench and refused to set aside the ex parte preliminary decree and appeal to Division Bench there from was also dismissed.
(19) In that view of the matter, the appellant cannot raise any issue as to correctness of the preliminary decree. The appellant is estopped from doing so. The preliminary decree is not a nullity. The first point is held against the appellant.
(20) On the second point, the learned Judge was right in awarding interest on the principal amount in the plaint in the final decree. This is in accordance with what is stated in the preliminary decree. The principal sum in the plaint no doubt includes the principal part of the debt and interest up to date of suit. The argument that interest should be on the principal part of the debt and not the principal amount shown in the suit, cannot be permitted in as much as the preliminary decree has become final and application to set aside the same has been dismissed. Point 2 is held against the appellant.
(21) The appeal is dismissed in liming.