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ibrahim Harun Jaffer Vs. Jusuf HussaIn Jaffer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 149 of 1917
Judge
Reported in(1920)22BOMLR798; 57Ind.Cas.551
Appellantibrahim Harun Jaffer
RespondentJusuf HussaIn Jaffer
DispositionAppeal dismissed
Excerpt:
citil procedure code (act v of 1908), 0rder ix, rule, 13 - ex parte decree-non-service of summons-application to set aside ex parte decree-fresh suit to set aside the decree is not competent.;a party against whom a decree is passed ex parte can seek to set it aside by an application under order ix, rule 13, of the civil procedure code, or he can appeal from the decree; but it is not competent to him to start a fresh proceeding to set aside the decree.;narmnyh das v. rafikan (1909) i.l.r. 37 cal. 197 and puran chand v. sheodal rai (1906) i.l.r. 29 all. 212, followed. - - now it is perfectly well-recognised that it is only on certain grounds that the court will entertain a suit to set aside a decree, and that is if it can be proved that the decree has been obtained' by fraud. an..........ex parte. the learned judge in the lower court held that the plaintiff was entitled to have the ox parte decree in suit 377 of 1912 set aside and awarded the claim with costs. now it is perfectly well-recognised that it is only on certain grounds that the court will entertain a suit to set aside a decree, and that is if it can be proved that the decree has been obtained' by fraud. otherwise there would be no end to litigation. an unsuccessful party cannot file another to set aside a decree because he is not satisfied with it, on any other ground except fraud. order ix, rule 13, of the code prescribes the course which should be followed by a party against whom a decree has been passed ex parte. ho has to apply to the court which passed the decree for an order to set it aside. if he.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff filed this suit to set aside a decree directing an award between the parties to be tiled. The ground on which he asked for this relief, as it appears in the plaint, was that the decree in terms of the award was passed on the 7th January 1913 ex parte without notice of the date of hearing being served on the plaintiff. It may be that there were vague allegations of misconduct and fraud in the plaint, but there were no particulars given of such fraud as is required by the rules of pleading, and it is quite clear that the case went to trial only on the question whether the plaintiff was entitled to have the award decree set aside on the ground that it was made ex parte. The learned Judge in the lower Court held that the plaintiff was entitled to have the ox parte decree in suit 377 of 1912 set aside and awarded the claim with costs. Now it is perfectly well-recognised that it is only on certain grounds that the Court will entertain a suit to set aside a decree, and that is if it can be proved that the decree has been obtained' by fraud. Otherwise there would be no end to litigation. An unsuccessful party cannot file another to set aside a decree because he is not satisfied with it, on any other ground except fraud. Order IX, Rule 13, of the Code prescribes the course which should be followed by a party against whom a decree has been passed ex parte. Ho has to apply to the Court which passed the decree for an order to set it aside. If he succeeds in satisfying the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court is entitled to make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, or the party against whom an ex parta decree is passed may appeal, but he certainly cannot start a fresh proceeding to set aside the decree. That has already been decided in other High Courts: see Narsingh Das v. Rafikan ILR (1909) Cal. 197 and Puran Ghand v. Sheodat Rai ILR (1906) All. 212 The learned Judge, therefore, in the Court below was wrong in allowing the plaintiffs claim and the appeal must be allowed, and the suit dismissed with costs throughout.

2. It appears in a pleading by the plaintiff in reply to the defendant's written statement that the plaintiff asked the Court to treat his counter written statement, if necessary, as an application to set aside the ex parte decree and rehear the suit 377 of 1912. The Judge considered this question, but decided that the plaint in the suit could not for the reasons he gave be treated as an application made in time to set aside an ex partc. decree under Order IX, Rule 13. The proper course for the plaintiff to follow then was to put in an application under Order IX, Rule 13 and ask the Court to excuse the delay under Section 14 of the Indian Limitation Act, and we think it is still open to him to follow that course and file an application under Order IX, Rule 13. For the present this suit was wrongly filed. We may note that the suit itself was filed within the time prescribed by the Indian Limitation Act for an application under Order IX, Rule 13.


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