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Hiralal Morarka Vs. Sitaram Manekchand - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 65 of 1951
Judge
Reported inAIR1952Bom446; (1952)54BOMLR555
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 13
AppellantHiralal Morarka
RespondentSitaram Manekchand
Appellant AdvocateK.H. Bhabha, Adv.
Respondent AdvocateK.T. Desai, Adv.
Excerpt:
- - as against the parties who have not applied the plaintiff has obtained a valuable right, he has obtained a decree against those defendants, and that valuable right can only be defeated provided the court itself finds a difficulty in setting aside the ex parte decree only against the defendant who has applied to do so......to the two defendants who were described as carrying on business under a partnership name. an ex parte decree was passed against both the defendants on 4-7-1950. defendant 1 took out a notice of motion on 21-10-1950, to set aside the ex parte decree, and on 16-2-1951, the ex parte decree was set aside as against defendant 1. on 13-3-1951, defendant 1 filed his written statement. on 17-7-1951, defendant 2, who is the appellant before us, took out a notice of motion to set aside the ex parte decree as against him. shah j. dismissed the notice of motion on 27-7-1951, and hence this appeal.[2] now, the application to set aside the ex parte decree as far as defendant 2 is concerned is time-barred, and mr. bhabha who appears for the appellant concedes it. but his contention is that his.....
Judgment:

Chagla, C.J.

[1] This is an appeal from an order of Shah J. refusing to set aside an ex parte decree at the instance of defendant 2. The suit was filed on 26-1-1950, and the cause of action was moneys lent and advanced to the two defendants who were described as carrying on business under a partnership name. An ex parte decree was passed against both the defendants on 4-7-1950. Defendant 1 took out a notice of motion on 21-10-1950, to set aside the ex parte decree, and on 16-2-1951, the ex parte decree was set aside as against defendant 1. On 13-3-1951, defendant 1 filed his written statement. On 17-7-1951, defendant 2, who is the appellant before us, took out a notice of motion to set aside the ex parte decree as against him. Shah J. dismissed the notice of motion on 27-7-1951, and hence this appeal.

[2] Now, the application to set aside the ex parte decree as far as defendant 2 is concerned is time-barred, and Mr. Bhabha who appears for the appellant concedes it. But his contention is that his client's application is really under our inherent jurisdiction and he appeals to us to exercise our inherent jurisdiction under Order 9, Rule 13 and set aside the decree as a whole and not only against defendant 1. Mr. Bhabha bases his contention on two grounds. Mr. Bhabha says that the suit is based on one single transaction. The defence put forward by defendant 1 in this written statement is a defence which is common to both the defendants. The defence put forward by defendant 1 is not a defence which is an individual defence, and therefore according to Mr. Bhabha the decree which has been passed is one and indivisible, based upon the same cause of action, and arising out of the same transaction. The other contention put forward by Mr. Bhabha is that assuming the defence of defendant 1 prevails and he succeeds in resisting the plaintiffs claim, there would be two inconsistent decrees on the file of this Court; an ex parte decree already passed against defendant 2 and dismissal of the suit as against defendant 1; and this result will be arrived at although, as pointed out, the cause of action against both the defendants is common and the transaction on which the plaintiff relies is a single transaction.

[3] In order to decide whether Mr. Bhabha's contentions are tenable, we must look to the language of Order IX, Rule 13. It may be pointed out that under the old Code, when an application for setting aside an ex parte decree was made by any defendant, the provision was that the Court shall make an order setting aside the decree. The Code was amended and in the amended Code the language used in Order IX, Rule 13, is 'the Court shall make an order setting aside the decree as against him.' Therefore, the principle accepted by the Legislature in Order IX, Rule 13, is that the ex parte decree shall ordinarily be set aside only against the party who applies to set aside the ex parte decree. I use the word 'ordinarily, because there is a proviso to Order IX, Rule 13, and the proviso provides that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also. It is clear that the proviso emphasises the nature of the decree. What the Court has got to consider is whether the decree which it is setting aside at the instance of one defendant is of such a nature that it cannot be set aside as against that defendant only. Therefore, the infirmity must be in the decree itself.

The obvious illustration would be a partition decree. If one of the defendants applied to set aside a partition decree, the Court could not set aside such decree against that defendant only because it would be impossible to work out a partition decree in the absence of any of the parties. Now, can it be said that in the decree which was passed in this suit, there is anything which makes it impossible for the Court or makes it difficult for the Court to set it aside as against defendant No. 1 only. The decree is only a money decree passed against both defendants Nos. 1 and 2. The decree can be worked out and can be executed even though the decree against defendant No. 2 stands and is set aside only against defendant No. 1. There is nothing in the nature of this money decree which the Court has passed which renders it difficult for the Court to set aside only guae one of the the defendants who are parties to the suit.

[4] Mr. Bhabha asked us to consider what would happen after the decree is set aside and the Court dismisses the suit against defendant No 1. In our opinion, that is not a consideration that can weigh with the Court when it considers the proviso to Order IX, Rule 13. The right to set aside the ex parte decree is conferred expressly only upon the party who applies to set aside the ex parte decree. As against the parties who have not applied the plaintiff has obtained a valuable right, he has obtained a decree against those defendants, and that valuable right can only be defeated provided the Court itself finds a difficulty in setting aside the ex parte decree only against the defendant who has applied to do so. But there is no right whatever in the party who has not applied to set aside the ex parte decree to have that decree set aside. Mr. Bhabha's client had the right to apply to set aside ex parte decree. He did not choose to exercise that right; he submitted to the decree. It is not therefore for him to appeal against any injustice that might be caused by reason of the fact that a suit against defendant No. 1 may be dismissed on the same cause of action. Ho himself has no right conferred upon him by the Code. It is only the difficulty that the Court might experience which has led the Legislature to enact the proviso.

[5] We are not very much impressed by the argument of inconsistent decrees being on the record of this Court. Take the instance of a decree being passed on an admission. One defendant may admit the claim, the other defendant may not, and it would be open to the Court to pass a decree against defendant No. 1 on an admission and the Court may proceed to try the suit as against defendant No. 2. This may happen although the plaint is based on the same cause of action and in respect of the same transaction. If the plaintiff's suit fails against defendant No. 2, it, may be said that there are inconsistent decrees on the record of the Court, because there is a decree against defendant No. 1 on an admission and a dismissal of the suit as against defendant No. 2, although the transaction was the same and the cause of action was the same. In the illustration. I have given, it is a case of a decree being passed against one defendant on an admission. In the present case there is a decree against defendant No. 2 by reason of the fact that he did not appear-and defend the suit. It may be that a different and inconsistent decree may be passed in respect of defendant No. 1 because he has been given the-right by the Code to defend his suit on merits. Such a right has not been given to defendant NO. 2.

[6] Therefore, in our opinion, the learned Judge below was right in the view that he took that the ex parte decree could not be set aside at the instance of defendant No. 2. The result is that the appeal fails and must be dismissed with costs.

[7] Appeal dismissed.


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