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Har Kishan Das and ors. Vs. Bhura Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1902)ILR24All383
AppellantHar Kishan Das and ors.
RespondentBhura Mal and ors.
Excerpt:
civil procedure code, sections 108, 443 - guardian ad litem--minor defendant not properly represented--ex parte decree against minor--application to set aside decree--how far the granting of such application should affect parlies other than the applicant. - - proceedings were taken to execute the decree, and then, for the first time, the minor defendants became aware that a suit bad been instituted and a decree passed against them. where a defendant to a suit is a minor, the court is bound, under the provisions of section 443 of the code, on being satisfied of the fact of such minority, to appoint a proper person to be guardian for the purposes of the suit for such minor, to put in the defence for him, and generally to act on his behalf in the conduct of the case. in the appointment of.....john stanley, c.j.1. this is an appeal from an order of the subordinate judge of aligarh refusing the application of the appellants under section 108 of the code of civil procedure to sot aside an ex parte decree which was passed against them on the 14th of june, 1900. the suit was brought by the plaintiffs for money alleged to be due to them on a balance of accounts. the defendants are one bhura mal, his daughter-in-law musam-mat gayatri, the widow of ganga prasad, a deceased son of bhura mal, who is a minor, and jamna das, the minor son of bhura mal. bhura mal was admittedly duly served with summons in the suit, and also, as has been proved, with a notice under the provisions of rule 128 of the court's rules calling upon him to state whether he was willing to act as guardian ad litem.....
Judgment:

John Stanley, C.J.

1. This is an appeal from an order of the Subordinate Judge of Aligarh refusing the application of the appellants under Section 108 of the Code of Civil Procedure to sot aside an ex parte decree which was passed against them on the 14th of June, 1900. The suit was brought by the plaintiffs for money alleged to be due to them on a balance of accounts. The defendants are one Bhura Mal, his daughter-in-law Musam-mat Gayatri, the widow of Ganga Prasad, a deceased son of Bhura Mal, who is a minor, and Jamna Das, the minor son of Bhura Mal. Bhura Mal was admittedly duly served with summons in the suit, and also, as has been proved, with a notice under the provisions of Rule 128 of the Court's Rules calling upon him to state whether he was willing to act as guardian ad litem for the minor defendants. It appears that he paid no attention to this notice, and that the Court omitted to pass any order appointing him or any other person to be such guardian, as required by Section 443 of the Civil Procedure Code. Without passing any order, either formal or informal, appointing any such guardian, the Court fixed the 14th of June, 1900, for the hearing. On that date there was no appearance for any of the defendants, and an ex parte decree was thereupon passed against all the defendants for the amount alleged by the plaintiffs to be due. Proceedings were taken to execute the decree, and then, for the first time, the minor defendants became aware that a suit bad been instituted and a decree passed against them. An application was made by the defendants, in the case of Musammat Gayatri through one Radha Ballabh; and in the case of Jumna Das through Bhura Mal, to have the ex parte decree set aside. The Subordinate Judge refused the application, apparently holding that Bhura Mal was the only appointed guardian ad litem of the minor defendants for the purposes of the suit, inasmuch as he had been served with a notice calling upon him to state whether he was willing to act as such guardian and had not declined to act. Where a defendant to a suit is a minor, the Court is bound, under the provisions of Section 443 of the Code, on being satisfied of the fact of such minority, to appoint a proper person to be guardian for the purposes of the suit for such minor, to put in the defence for him, and generally to act on his behalf in the conduct of the case. In the appointment of a guardian the Court ought to be satisfied, not merely that the proposed guardian is a fit and proper person to act as such, but also that he has no interest directly or indirectly adverse to the minor. An active duty in this respect is thus imposed on the Court. It is said that the fact that Bhura Mal did not object to his being appointed guardian when this notice calling upon him to state whether he was willing to act as such was served upon him, was equivalent to a consent on his part to act, and justified the Court in regarding him as guardian. But the question is not whether the proposed guardian was willing to act, but whether the Court was satisfied upon proper materials that, he was a proper person to appoint, and being so satisfied, did appoint him within the meaning of Section 443. It is clear to my mind that the Court did not, either formally or informally, appoint Bhura Mal guardian ad litem, of either of the minor defendants, and consequently that the case must be dealt with as if no guardian ad litem had been appointed for them. A Court cannot be too jealous in observing the requirements of the law in regard to infants, and in seeing that in suits affecting them their interests are properly safeguarded. It is unfortunate that in this instance the Court entirely disregarded the requirements of the section to which I have referred, and, neglectful of the obvious and simple duty thereby enjoined upon it, passed a decree against the minor defendants. I may observe that Musammat Gayatri is the widow of a deceased son of Bhura Mai, and could not as such have been under any liability to the plaintiffs in respect of the alleged debt. For these reasons the decree clearly must, I think, be set aside as against the minor defendants.

2. A more difficult question, however, remains for determination, and that is, whether our order should be limited to setting aside the decree as against the minors merely, or should go further and set it aside in its entirety as well against Bhura Mal as against the minor defendants. This question depends upon the true construction to be placed upon Section 108 of the Code of Civil Procedure. This section runs as follows: 'In any case in which a decree is passed 'ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies 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 shall pass an order to set aside the decree upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.' It has been contended on behalf of the respondents that the direction given in the section, namely, that the Court shall set aside the decree, does not mean that the Court shall set aside the decree in its entirety against all the defendants, but only as against a party who may not have been duly served, or a party who was prevented by any sufficient cause from appearing when the suit was called on for hearing. If this had been the intention of the Legislature the addition of a few words to the section would have made the intention perfectly plain: the insertion after the words the decree 'in the latter portion of the section of some such words as' as against such defendants 'would have rendered the meaning plain, and I cannot but think that words such as these would have been introduced if such had been the intention. Again, at the end of the section the Court is directed, after passing an order to set aside the decree, to appoint a day for proceeding with the suit. Here again there is an indication that it was the entire decree which was in the contemplation of the Legislature, and not the decree so far as it affected one or more only of the defendants, for the direction is to proceed with the suit, not to proceed with the suit as against the defendant who had succeeded in having the decree set aside. It is a well-known rule of construction that nothing is to be added to, or taken from, a statute cm less adequate grounds are found, either in the cause of the enactment, or in the context, or in the consequences which would result from the literal interpretation, to justify the inference that the Legislature intended something which it had omitted to express. I am not aware that there are any such grounds in the present case. On the contrary, it seems to me that expediency requires that the entire decree shall be sot aside. Serious complications might arise if the decree were allowed to stand as against one defendant, and yet be get aside as against co-defendants. For example, in a suit for a declaration that a plaintiff is entitled to joint possession of immovable property with two defendants A and B, A is served with the summons and B is not served. Neither defendant appears to defend the suit, and a decree is passed against both defendants. B makes an application to the Court to have the decree set aside, and it is set aside accordingly as against him, but not as against his co-defendant. Upon the hearing B establishes that the plaintiff has no title whatever to the property. There would in such a case be two absolutely inconsistent decrees: which is to prevail? Again, let me take the case of a promissory note made by two persons A and B jointly; B has paid the amount of the note; notwithstanding this the payee sues both parties on the note. A alone is served with summons, but does not appear to defend the action. B has not been served with summons, and in consequence has the decree set aside as against him, and on the trial of the suit establishes the fact of payment. In such a case A would be liable under the decree obtained against him to satisfy a note which the Court found had already been satisfied by B, Other instances of like anomalies might readily be multiplied. There does not appear to be any authority upon this question in this Court; but it has recently come up for decision in several cases in the Calcutta High Court. In the case of Mahomed Hamidulla v. Tohurennissa Bibi (1897) I.L.R. 25 Calc. 155 it was held that the words 'the decree' in Section 108 of the Code mean the whole decree in the suit. In that case a suit had been brought against two sets of defendants upon a promissory note which had been made by two persons, one of whom died before the suit was brought. The suit was brought against the surviving maker of the note, and the heirs of the other deceased maker. Two of these heirs were pardanashin ladies, upon whom summons had not been duly served. A decree was passed against all. The defendants against whom the decree had been made ex parte applied to the Munsif of Alipore under Section 108 of the Code to have the decree set aside, and it was set aside as against all the defendants. At the instance of the plaintiff, a rule was granted to show cause why the order of the Munsif should not be set aside, which was heard before Maclean, C.J. and Banerji, J. These learned Judges held that upon the true construction of Section 108 of the Code, the order of the Munsif was correct, setting aside the decree in its entirety. This is a stronger case than the case before us, inasmuch as in it some of the defendants appeared and defended the suit, whereas in this case before us none of the defendants defended the suit. The ruling in this case was followed by another Bench of the Calcutta High Court in the case of Ajodhya Pershad Singh v. Sheo Pershad Suhu (1900) 5 C.W.N. 58. In that case a suit was brought to enforce a mortgage against three persons, one of whom was a minor, and represented by his father-in-law as guardian. None of the defendants appeared, and the suit was decreed ex pdrta. An order was subsequently made making the decree absolute, and in execution of the decree the property was sold. The minor defendant, represented by one Fateh Bahadur as next friend, made an application to have the ex parte decree set aside under Section 108 of the Code, and a similar application was made by one of the other defendants. The Subordinate Judge of Muzaffarpur, without taking any evidence, was of opinion that, so far as the minor was concerned, the non-appearance in the suit of the guardian was sufficient cause within the meaning of Section 108, and that the ex parte decree ought to be set aside, and that the decree being set aside against the minor defendant it should being aside against the other defendants. Against this order the plaintiff made an application and obtained a rule to show cause why the order of the Subordinate Judge should not be set aside. The learned Judges, Ghose and Steven, JJ., concurred in the decision in Mahomed Hamidulla v. Tohurennissa Bibi to which I have referred, and held that the decree was properly set aside by the Subordinate Judge as against all the defendants. There appears to me to be great weight in the reasons assigned for their judgment by the learned Chief Justice, Sir Francis Maclean, and Mr. Justice Banerji, in the case which I have quoted, but it is not necessary for me, and I therefore abstain from expressing any opinion upon a case, such as the case before them, in which one or more of several co-defendants has appeared and defended the suit, while in the case of another defendant a decree has been passed ex parte. A conflicting decision upon this point is to be found in the case of Manaku kom Pedru v. Sitaram Atmaram Vagh (1893) I.L.R. 18 Bom. 142 in which Sir Charles Sargent and Bayley, J., held that the setting aside of an ex parte decree on an application by a co-defendant against whom it had been passed ex parte did not reopen the case against the defendants who were present and who conducted the defence where there is a common cause of action against all the defendants. The judgment of the learned Chief Justice in that case is remarkable for its brevity and may be quoted verbatim. It is as follows: 'Having regard to the language of Sections 106 and 108 of the Civil Procedure Code (Act XIV of 1882) the question must be answered in the negative.' Now it has been contended on behalf of the respondents that great difficulties will arise if the contention advanced on the part of the appellants is allowed to prevail. For example, the case was put in which an ex parte decree had been executed by a sale of property to third parties. It is suggested that on the setting aside of the decree there would be serious difficulty experienced in adjusting the rights of the parties, including the auction purchaser, and injustice might be worked. It seems to me, however, that, having regard to the provisions of Article 164 of the Indian Limitation Act, which prescribes that an application for an order to set aside a judgment ex parte shall be made within 30 days from the date of executing any process for enforcing the judgment, largely minimises the possibility of any such difficulty arising, inasmuch as in the short period of 30 days it is improbable, if not impossible, that a sale could be carried out. For the foregoing reasons I would allow this appeal, set aside the order of the Subordinate Judge and also the ex parte decree passed against all the defendants, and direct that the suit be restored to its original place on the register, and be tried according to law. The plaintiffs are to blame, in that they sued minors and did not take the precaution of seeing that a guardian ad litem was appointed for them. They cannot therefore complain. The appellants, other than Bhura Mal, are, I think, entitled to their costs of this appeal. Bhura Mal ought to abide his own costs.

3. It may be well to point out to the learned Subordinate Judge that before proceeding with the disposal of the suit a guardian ad litem must be appointed by the Court for the minor defendants pursuant to Section 443 of the Code of Civil Procedure. I desire to add that I express no opinion on a case in which a decree passed against several defendants consists in reality of separate decrees as against each; I merely hold that where a decree is one and indivisible, as is the decree in this case, it must be set aside in its entirety.

Burkitt, J.

4. On the admitted and proved facts of this case in which none of the defendants appeared at the hearing, and a decree was passed against them all ex parte, I have come to the same conclusion, and very much for the same reasons, as the learned Chief Justice, and concur in directing that under Section 108 of the Code the ex parte decree should be set aside as against all the defendants, and a day appointed for proceeding with the suit. But I desire to confine myself to the facts of this case, and I refrain from expressing any opinion whatever on a case in which, while some of several defendants appeared and defended the suit, others, as to whom a decree had been passed ex parte, made an application under Section 108 of the Code. Such is not the case here, and it is therefore unnecessary for me to say whether in such a case I would be prepared to follow the Calcutta decisions cited by the learned Chief Justice.

Aikman, J.

5. This is an appeal under Section 588(9) of the Code of Civil Procedure against an order rejecting an application under Section 108 of the Code to set aside a decree which had been passed ex parte against the appellants. The suit in which the ex parte decree was passed was instituted by the plaintiffs respondents on the 27th of April, 1900. It was brought against (1) Bhura Mal, (2) Musammat Gayatri widow of Ganga Prasad a deceased son of Bhura Mal and (3) Jumna Das, son of Bhura Mal.

6. The plaint alleged the second and third defendants to be minors, and asked for an order for the appointment of the first defendant as their guardian ad litem.

7. This application, we are informed, was not supported by the affidavit required by Section 456 of the Code, i.e. an affidavit verifying the fact that the proposed guardian had no interest in the matters in question in the suit adverse to that of the minor, and that he was a fit person to be appointed guardian.

8. On receipt of this plaint the Court issued two notices to Bhura Mal, one to appear and defend the suit brought against him, the other a notice calling upon him to appear and state whether he was willing to act as guardian ad litem for the minors.

9. Both notices were made returnable on the 14th of June, 1900, the date fixed for the hearing of the suit. On that date no appearance was made by or on behalf of any of the defendants, and the Court took up the case ex parte, and passed a decree in favour of the plaintiffs.

10. On the 26th of June, 1900, the plaintiffs applied for execution of the decree. On the 8th of July, 1900, certain immovable property was attached, and a notification was issued fixing the 30th of October, 1900, for the sale of the property in satisfaction of the decree. One day before the date fixed for the sale, i.e. on the 29th of October, the defendants applied under Section 108 of the Code for an order to set aside the ex parte decree. The application was presented by Bhura Mal for himself and as guardian of his son Jamna Das, and by one Radha Ballabh as guardian of Musammat Gayatri. The defendants alleged that the summonses bad never been served on them, and that until the 2nd of October, 1900, they had had no knowledge of the suit or of the subsequent proceedings. After a careful review of the evidence the lower Court came to the conclusion that Bhura Mal's allegation that he had no notice of the suit or of the application to appoint him guardian ad litem, or of the subsequent proceedings, was false, and it rejected the application for an order to set aside the ex parte decree.

11. In their appeal to this Court the defendants repeat their allegation that they had no notice of the suit, and assert that the ex parte decree was obtained by fraud with the help of the amin and the peons of the Court.

12. The Learned Counsel for the appellants frankly admitted that he was unable to support the appeal in so far as it impugned the finding of the lower Court that the defendant Bhura Mal had been served with notice of the suit, and with the notice to appear and state whether he was willing to act as guardian ad litem for his minor co-defendants.

13. In this I think the Learned Counsel was well advised, for the grounds and the reasoning upon which the lower Court has based its finding appear to me to be unassailable.

14. The Learned Counsel for the appellants relies upon the fourth plea in the memorandum of appeal, and contends that the minor defendants are clearly entitled to have the ex parte decree against them set aside, inasmuch as they were never properly represented in the suit, no appointment of a guardian ad litem having been; made. This plea must, in my judgment, be sustained. Section 443 of the Code provides that when the defendant to a suit is a minor, the Court shall appoint a guardian for the suit for the minor. But before making such appointment, the Court must be satisfied, not only of the fact of the minority, but also that the person it appoints is a fit person for the post. An application for the appointment of a guardian may be made either in the name and on behalf of the minor defendant, or by the plaintiff, and in such application the name of a proposed guardian may be submitted for the approval of the Court. But before granting the application the Court must apply its mind to the consideration of the question whether the person nominated is in every way fit for the post. The Court must be satisfied that the person it appoints will safeguard the interests of the minor, and that he has no interests of his own which will come into conflict with the minor's interests in the suit. In the present case the plain, tiff applied for the appointment of Bhura Mal as guardian; but, as stated above, without filing the affidavit required by law. The Court contented itself with serving Bhura Mal with notice to appear and state whether he was willing to act. No appearance being made, the Court proceeded to dispose of the suit forthwith, without making any formal order appointing a guardian for the minors. It is true that the mere absence of a formal order is not necessarily fatal to the suit, as was held by a Full Bench of the Calcutta High Court in Suresh Chunder Wum Chowdhry v. Jugut Chunder Deb (1886) I.L.R. 14 Calc. 204. But before the absence of a formal order can be looked on as a mere irregularity, we must, as was held in the case just cited, be satisfied that the Court applied its mind to the consideration of the question of the representation of the minor, and arrived at the conclusion that the guardian nominated was in every way a fit person to safeguard the interests of the minor in the case before it. In the present instance, it is quite clear that the Court below did not do this. The plaintiff's claim was to recover money on a balance of account signed by the defendant Bhura Mal, and the minor defendants were impleaded because the plaintiffs wished to proceed against the joint family property. Now in such a case it would have been open to Bhura Mai's son to dispute the existence of the debt, or to show that it was not of a nature to bind the joint family property. How was the lower Court satisfied that in a case of this nature the father had no interest in the matters in question in the suit adverse to that of his minor son? It is quite clear that the lower Court blindly accepted the plaintiff's nomination without ever coming to a judicial determination as to the fitness of the person nominated. Under these circumstances the absence of an order appointing a guardian for the minors is, in my judgment, a fatal defect. This is in accordance with the principles laid down in the Calcutta case cited above, with which I fully concur. It follows that the decree passed by the lower Court on the 14th of June, 1900, against the minors was passed when they were not properly represented in the suit, and ought to have been set aside. I therefore hold that the lower Court was wrong in rejecting the application made under Section 108 of the Code of Civil Procedure on behalf of the minors for an order to set aside the decree.

15. A question of more difficulty now falls to be dismissed, and that is, whether the ex parte decree which was passed against Bhura Mal should also be set aside. If he had been the sole defendant to the suit, it is clear that there would have been no ground whatever for disturbing the ex parte decree. The lower Court's judgment, which is now under consideration, shows conclusively that Bhura Mal's allegations--allegations which he verified--that he had no notice of the suit and subsequent proceedings are not to be believed. So far as he personally is concerned, he is no more entitled to have the decree set aside than if he had appeared and defended the suit. But he was not the sole defendant, and we have to consider whether the decree against his co-defendants can be set aside and the case reopened without at the same time setting aside the decree as against him.

16. In the case of Kesho Pershad v. Hirday Narain (1876) 6 C.L.R. 69 an ex parte decree was passed against a mother personally, and also as guardian of her two infant sons. She applied to have the decree set aside, alleging that the summons had not been duly served upon her. The Subordinate Judge held that service of the summons on her was clearly proved and dismissed the application. On appeal Markby and Mitter, JJ., held that service of summons upon the mother being proved they had no power to interfere so far as she was concerned. But as regards the minors they allowed the appeal, observing that it was not to be expected that they could have appeared in person, and that they had a right to expect that their lawful guardian would take the proper, and what in this case was obviously a necessary, step to protect their interest. Accordingly the learned Judges set aside the ex parte decree so far as regarded the minors, and remanded the case to the lower Court to be proceeded with as against them in the usual way, at the same time declaring that the decree stood good as regards the mother.

17. This case bears a remarkable similarity to the case now before us, but the report leaves us in the dark both as to the nature of the suit and of the decree which was passed in it.

18. The provisions of the law as to setting aside ex parte decrees were practically the same under the previous Codes, Act No. VIII of 1859 and Act No. X of 1877, as they are in the present Code.

19. Section 106 of the present Code provides that if there be more defendants than one, and one or more of them appear and the others do not appear, the suit shall proceed, and the Court shall at the time of passing judgment make such order as it thinks fit with respect to the defendants who do not appear. Under the concluding words of this section, it has been the universal practice to pass an ex parte decree against the absent defendant, when the plaintiff proves that the summons has been duly served, and that as against him he is entitled to a decree.

20. Section 108 of the Code provides that when a decree Is passed ex parte against a defendant, he is entitled on making out a sufficient case to get an order to set aside the 'decree.' What is meant here by the words 'the decree'? In my opinion they refer back to the opening words of the section, and denote the decree passed ex parte against the defendant who makes out a case for having it set aside. On an order being passed to set aside an ex parte decree, the Court has to appoint a day 'for proceeding with the suit.' I take it that this means, unless under exceptional circumstances, to be presently referred to, for proceeding with the suit against the defendant who has succeeded in getting the ex parte decree set aside.

21. In support of this view, I would refer to the case Huro Krishno Doss v. Motee Chand Baboo (1867) 8 W.R.C.R. 260. That was a case in which the learned Judges, Seton-Kerr and Mitter, JJ., had to consider the question whether, when an ex parte decree passed against one defendant was set aside on his application, the whole case was reopened against the defendants who had appeared. They answered the question in the negative, and in the course of their judgment they say: 'The only difficulty we felt is with the words ' shall appoint a day for proceeding with the suit'. But we interpret these words to mean that a day is to be appointed for proceeding with the suit so far as the defendant who has applied to the Court is concerned. In the preceding part of the sentence, it is said: 'The Court shall pass an order to set aside the judgment'. [In the present Code the word' decree' has been substituted for 'judgment', but this does not affect the reasoning.] 'What is the judgment herein referred to? Assuredly the judgment described in the very first sentence of the section, i.e. the judgment passed ex parte against a defendant who has not appeared. If, therefore, the law gives power to the Court to set aside this judgment, and this judgment only, we do not see how the Court can proceed to try the suit with reference to the other defendants as against whom the judgment passed has not been set aside.' Substitute the word ' decree ' for judgment, and this reasoning of the learned Judges applies in all its force to the question we have to consider. That reasoning, subject to an important qualification which I shall presently set forth, I thoroughly approve of and adopt.

22. Before considering the recent decisions bearing on the point, I will refer shortly to some of the older cases cited in the course of the argument. Doorga Persaud Ghose v. Greeshchunder Bose (1864) 1 W.R.C.R. 22 was a case under the Rent Act, the provisions of which as to revival of suits do not differ materially from those of the Code of Civil Procedure. In this case an ex parte decree was passed against the defendants, none of whom put in an appearance. On the application of one of the defendants, the case was reopened, and on the rehearing, the Deputy Collector dismissed the plaintiff suit, not only as against the defendant who had applied for a rehearing, but as against all the defendants. On appeal by the plaintiffs the High Court (Trevor and Campbell, JJ.) was of opinion that there could be no doubt that the original decree of the Deputy Collector against those parties who had not applied for a review must be considered to be still in force as regards them,' and allowed the plaintiff's appeal against those parties.

23. Brojonath Swmah Chuckerbatty v. Anund Moyee Debia Chowdhrain (1867) 7 W.R.C.R. 222 was also a case under the Rent Act, and the same view was taken by the Judges (Loch and Macpherson, JJ.), as in the case last cited, though it was not referred to in the judgment.

24. The case of Dookhee Khan v. Rajessuree Ranee (1871) 15 W.R. 371 was one in which a plaintiff obtained an ex parte decree for money against three defendants. One of the three applied to have the case reopened, and his application was granted. On the re-hearing the Court found him not liable, and exonerated him from the plaintiff's claim. The Judge of the Court of Small Causes, before whom the case was, upheld the original decree against the defendants who had not moved to set it aside, but being doubtful whether this was in accordance with certain Rules of Practice issued by the Sadr Court, referred the point to the High Court. The learned Judges who heard the reference (Norman, C.J. and Loch, J.), answered it in the following cautious terms. I quote the answer in expense, as hitherto the cases had all been one way, and in this case we find for the first time what appears to me to be the true principle for deciding the question at issue :--' We think it may be competent to the Judge of the Small Cause Court, on hearing the objections by one of the several defendants, to set aside the decree as to all, if justice seems to require it; as for instance, if the objection is one which is common to the case of all; but that he is by no means bound, because the decree is set aside as to one of several defendants, to interfere with the decision already pronounced against others who do not object, and in fact may have no ground for objecting, to the decree.

25. Coming to cases of more recent date, the first in order of time is that of Manaku kom Pedru v. Sitaram Atmaram Vagh (1893) I.L.R. 18 Bom. 142. In that case the plaintiff brought a suit against one Francis Pedru and his mother Manaku to recover Rs. 476-9-0 due upon a promissory note executed jointly by the defendants. At the hearing Pedru alone appeared and resisted the claim. The Subordinate Judge passed a decree against both the defendants. Subsequently the mother applied to set aside the decree passed ex-parte against her, and the Subordinate Judge referred to the High Court the question whether, on her application being granted, the case would be reopened with reference to the first defendant also.

26. The following was the answer made to the reference by the learned Judges (Sargent, C.J. and Bayley, J.): 'Having regard to the language of Sections 106 and 108 of the Civil Procedure Code (Act XIV of 1882) the question must be answered in the negative.'

27. The next case is that of Mahomed Hamidulla v. Tohurennissa Bibi (1897) I.L.R. 25 Calc. 155. That, like the Bombay case just referred to, was a suit against several defendants on a promissory note. Some of the defendants appeared and resisted the suit. Two of the defendants did not appear. The Court passed a decree against all the defendants. The two defendants against whom the decree had been made ex parte afterwards made an application under Section 108 of the Code to have the decree set aside. The application was granted, and the decree was set aside by the lower Court, not only as against the applicants, but also as against the other defendants who had appeared and defended the suit. The plaintiff appealed, and the learned Judges, Maclean, C.J. and Banerji, J., held that the decree had been rightly set aside against all the defendants. The learned Chief Justice does not refer in his judgment to any of the previous decisions of his Court. Whilst admitting that the language of Section 108 is not so clear as it might be, he is of opinion that when the section says the Court should set aside 'the decree,' it must mean the decree--the whole decree in the suit. With the utmost possible respect for the opinion of the learned Chief Justice, I am unable to follow him in the construction he places on the words of the section. As I have stated above, I am of opinion that the words 'the decree' must be read in conjunction with the opening words of the section. In any case in which a decree is passed ex parte against a defendant, the words 'the decree' mean the ex parte decree referred to in these opening words. In his judgment Banerji, J., says: 'It may often happen that the setting aside of the decree as regards some of the defendants renders it necessary in the interest of justice that the whole decree should be reopened.' With this view, which is in accord with what Norman, C.J., said in the case in 15 W.R. 371, I am in entire concurrence.

28. The learned Judges who decided the case in I.L.R. 25 Calc., had occasion to consider it in a recent case Monomohini Chowdhurani v. Nara Narayan Roy Chaudhri (1899) 4 C.W.N. 456. Referring to the case in 25 Caloutta, the learned Chief Justice says: 'In that case there was only one decree--one and indivisible, as my learned brother pointed out, and we did not see how under such circumstances, and having regard to the language of Section 108, it could be set aside otherwise than in its entirety.' This would seem to be a departure from the position taken up in the earlier case, which was, that the language of Section 108 is imperative and necessitates the whole decree being set aside. I entirely agree with the view that when the decree is one and indivisible it must be set aside as a whole, or not at all. To hold that a decree which is 'one and indivisible' could be set aside in part, and in part maintained, would be a contradiction in terms. Banerji, J., referred to the earlier case as holding that when on an application of one or more of the defendants the decree is set aside under Section 108 of the Code 'the Court has power to set aside the entire decree.' If that is all that was held in the earlier case, I see no reason to differ. In my opinion the Court must be assumed to have the power to set aside the whole decree, if the decree from its nature is one and indivisible, or if, in order to give to the defendants against whom an ex parte decree has to be pronounced the relief to which they are entitled, it must be set aside as a whole. Take the case which was put to us in argument. A comes into Court on the allegation that X and Y are in joint possession of certain immovable property and asking for a declaration that he is in joint possession along with them. X appears and defends the suit. Y does not appear. The Court finds that X and Y are in joint possession, and that A is entitled to the relief he asks for, and decrees accordingly. If F succeeds in getting an order to set aside the decree passed ex parte, it is evident from its very nature that the whole decree must be set aside, otherwise, in the event of Y succeeding ultimately in the suit, this absurd position would arise that X and Y being in joint possession of the property, A would be in possession of a decree declaring him to be jointly in possession along with X and Y, whilst Y would have a decree in his favour that A was not in joint possession with himself and X.

29. Now, adverting to the present case we have the plaintiffs coming into Court on the assumption that the defendants are members of a joint Hindu family, and seeking to get a decree for the debt which Bhura Mal has incurred, under which they, the plaintiffs, will be able to attach the joint family property. In such a suit the minor defendants are entitled to show, if they can, that the debt never was incurred, or that it has been discharged, or that from its nature the joint family property would not be liable. This being so, it appears to me that in order to give the minors the relief to which they are justly entitled, the decree must, on the principles set forth above, be set aside as a whole.

30. For these reasons I would allow the appeal, and, reversing the order of the lower Court, would make an order setting aside the ex parte decree of the 14th June, 1900, and directing the lower Court to appoint a day for proceeding with the suit against all the defendants.

30. Although I make this order in favour of all the defendants, I feel bound to say that I have no sympathy with the appellant Bhura Mai. It is only from the necessity of the case that I hold the decree against him must be set aside. He came into Court making baseless allegations of fraud, and falsely asserting that he had no knowledge of the suit and subsequent proceedings. For this reason I am of opinion that, although the minors are entitled to their costs here and in the Court below, Bhura Mal is not entitled to his costs. I cannot conclude without expressing my regret that though the Legislature has by the provisions of Chapter XXXI of the Code of Civil Procedure, done its best, to safeguard the interests of minors, the object of the Legislature was in this case defeated by the neglect of these provisions.

31. The order of the Court is that the appeal be allowed and the order of the lower Court reversed. We set aside the ex parte decree of the 14th of June, 1900, and direct the lower Court to appoint a day to proceed to the hearing of the suit against all the defendants. As regards the costs, we all are of opinion that Bhura Mal is not entitled to the costs of this appeal, but that the other defendants, the minors, are so entitled, and inasmuch as the appeal has been a joint appeal on behalf of all the order of the Court is that the minor defendants be allowed two-thirds of the costs of this appeal and two-thirds of the costs of the proceedings under Section 108 in the Court below.


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