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Sultanul Zaman Vs. Hamid UddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 67 of 1959
Judge
Reported inAIR1963All361
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 9, Rule 13; Limitation Act, 1908 - Schedule - Article 164
AppellantSultanul Zaman
RespondentHamid UddIn and ors.
Appellant AdvocateM.H. Hussain, Adv.
Respondent AdvocateBaleshwari Prasad, Adv.
DispositionRevision allowed
Excerpt:
civil - notice - section 151 and order 9 rule 13 of code of civil procedure, 1908 - whether a final decree prepared without notice for partition of agricultural plots can be set aside - held, can be set aside by an application under order 9 rule 13 - court has also inherent power to undo the wrong committed by it. - .....no bearing on the point because after the passing of the preliminary decree the proceedings for finaldecree remained interrupted in the court of the munsif because papers were sent to the revenue court for preparation of the partition scheme. on the principle of natural justice the parties should have been informed of the partition scheme and their objections invited after giving a notice to them. the final decree passed without notice should have been set aside on the application of tns defendant. in the case of durga prasad v. met ram, air 1923 all 79(2) a division bench of this court held mat when an ex parte decree was passed without giving notice of the date to which the case was adjourned to the defendant or his counsel, the ex parte decree should be set aside. there are other.....
Judgment:
ORDER

Mithan Lal, J.

1. This civil revision filed by the defendant arisesout of the following circumstances.

2. The plaintiffs brought a suit for partition of certain agricultural plots including a grove. The suit wasdecreed by the Munsif. A preliminary decree was passed and then the record was sent to the revenue court for preparation of the partition scheme. Thereafter an appeal was preferred by the defendant and the appellate Court modified the preliminary decree. On receipt of the partition scheme from the revenue Court the learned Munsif passed another order sending back the papers to the Revenue Court for the preparation of a fresh partition scheme according to the amended decree. A fresh partition scheme was received from the Revenue Court but no notice of it was given to the defendant or his counsel, and the learned Munsif passed a final decree in terms of thefresh partition scheme on 13-8-1957.

3. An application was made by the defendant under Order 9, Rule 13, C.P.C. for the setting aside of the final ex parte decree, and the main contention was that tne final decree having been prepared without notice should be set aside. This application was made on 20-ll-1957, that is about three months after the final decree, and the defendant claimed knowledge of the decree from the 27th Oct. 1957 when the Amin went to the spot to givedelivery of possession. The application was dismissed on the ground that the defendant having contested the casethere was no sufficient ground for his absence. The lower appellate Court also dismissed the appeal on the groundthat a final decree being a continuation of the suit and the defendant having been duly served and having offeredcontest, it was his duty to find out what was happening in the case. The application was therefore dismissed on the ground of limitation. It is against these findingsthat the present revision has been filed.

4. I have heard the learned counsel for the parties.Both the Courts have given a finding that no notice of the final decree either to the defendant or to his counselwas given and so it has been contended that the proceedings for final decree having been freshly started after the receipt of the partition scheme from the revenue court, a notice was necessary and the final decree is not binding on the defendant. The contention is that in such a case not only a notice was necessary but that the second part of Article 164 of the Limitation Act applied and the application for restoration could be made within thirty days of the date of knowledge. This contention of the learned counsel must be accepted.

5. The learned counsel have not been able to cite any authority directly on the point. There is also no provision in Section 54 or Order XX, Rule 18, C.P.C. or in the rules framed under the U.P. Z.A. and L.R. Act that a notice should go to the parties after the partition scheme is received; outall the same absence of such a provision does not give the Court a power to pass a final decree without notice to the parties. The argument of the continuation of tne suit has also no bearing on the point Because after the passing of the preliminary decree the proceedings for finaldecree remained interrupted in the Court of the Munsif because papers were sent to the revenue Court for preparation of the partition scheme. On the principle of natural justice the parties should have been informed of the partition scheme and their objections invited after giving a notice to them. The final decree passed without notice should have been set aside on the application of tns defendant. In the case of Durga Prasad v. Met Ram, AIR 1923 All 79(2) a Division Bench of this Court held mat when an ex parte decree was passed without giving notice of the date to which the case was adjourned to the defendant or his counsel, the ex parte decree should be set aside. There are other cases also in which the same principle has been reiterated but it is not necessary to make a referernce to them.

6. There are however two cases of 1958 which may be referred to. in the case of Baljit Singh v. Munnu Lai : AIR1959All251 a final decree for foreclosure was passed without notice to judgment-debtors and the learned single Judge who decided that case held that, although there is no specific provision for the issue of a notice of an application for the passing of a final decree for foreclosure, a notice should be issued to the judgment-debtors so that they could know that there was an application for final decree. The other case is that of Prabhu Dayal v. Sub-Divisional Officer, Karvi : AIR1958All673 . The point involved in this case was not directly involved in that case; but the observations made by the learned single Judge, while deciding the writ petition, ao lend support to the view that when record is transmitted to the 'revenue Court for preparation of a final decree In a partition suit, the Court should keep in mind the rights of the parties. There may not be any specific provision in law for giving notice for the preparation of a final decree, yet the principles of natural justice do require that such a notice should be given. A final decree which has been prepared without notice can always be set aside by means of an application under Order 9 Rule 13 because the final decree in that sense is an ex parte decree. Moreover, the court has also inherent jurisdiction to undo the wrong committed by it.

7. It was also contended that the case would fall under part II of Article 164 of the Limitation Act because according to the arguments of the learned counsel the expression 'Summons' in that Article refers to summonses or notices which may be required to be issued before the passing of the final decree. This contention is not quite correct in law because according to the interpretation which Has been placed by the various High Courts, the word 'summons' does not include notices that might be served on the defendant during subsequent stages of the suit, it only refers to summonses to be served on the defendant for the first hearing of the suit. In cases where summonses for the first hearing of the suit have already been duly served on the defendant subsequent non-service of the summonses or notices cannot be brought under tne purview of Article 164; nor can a fresh start of limitation be claimed in such cases from the date of knowledge, mere are any number of authorities on the point; but I would content myself by referring to the latest case of Mahendralal Barooah v. Ramprasad, AIR 1961 Assam 80 in which the following has been held:

'The summons which is referred to in Article 164 is the summons in the suit itself. Where the summons was duly served and the defendant appeared' on the date of hearing of the suit but the matter remained pending and when after the lapse of two years the case was orderedto be put up for hearing fresh summons was not issued to the defendant and the suit was decreed ex parte, it cannot be said that the summons was not duly served within meaning of. .....Article 164 and hence the starting point of limitation for setting aside the ex parte decree would be the date of the decree and not when the defendant had the knowledge of the decree.'

This contention of the learned counsel, therefore, cannot te accepted. As observed above, the final decree having been passed without any notice or information, the Courthad ample inherent power to set it aside within thirty days of the date of knowledge.

8. The revision is allowed with costs and the orders passed by the Courts below are set aside as also thefinal decree passed in the case. The case is sent back to the trial Court with the direction that it shall be readmitted and the proceedings for final decree shall be reopened and then proceeded with according to law atter giving opportunity to the parties to contest the partition scheme in the light of the observations made above.

9. Record of the case shall be sent back to the Court below as early as possible.


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