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Samodh Dhar Dube and anr. Vs. Bhuladhar Dube and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.284
AppellantSamodh Dhar Dube and anr.
RespondentBhuladhar Dube and anr.
Excerpt:
civil procedure code (act xiv of 1882), section 108 - ex parte decree against some defendants--decree one and indivisible--ex parte decree set aside--decree set aside in its entirety. - - 383, it was distinctly held that when a decree is one and indivisible, it must be set aside in its entirety or not at all, although the application to set aside the decree may be the application of only one of the defendants......a decree against them and that a period of more than three years had elapsed from the date of the original decree. the court of first instance rejected the objection. the lower appellate court holding that the decree of 5th july 1905 did not affect the objectors in any way and apparently on the ground that the present application was made more than three years from the original decree passed in the case has allowed the objection and set aside the order of the first court. on appeal it is contended that the original decree was one and indivisible and could not be set aside in part, that the order setting aside the decree set it aside as a whole against all the defendants and that the second decree of july 5th, 1905, was a complete and full decree against all the defendants in the case.....
Judgment:

Tudball, J.

1. This is a decree-holder's appeal. The facts of the case are as follows: A suit for sale on the basis of a mortgage was brought against three sets of defendants (1) the heirs of the original mortgagor, (3) a puisne mortgagee, (3) transferees of a portion of the property from the original owner. The puisne mortgagees and the transferees and one of the heirs of the mortgagor contested the suit and finally a decree was given against all the defendants (ex parte, as against those who had not appeared). An order absolute was obtained on January 3rd 1905. Some of the heirs of the mortgagors who had not appeared to contest the suit applied to the Court under Section 108, Civil Procedure Code of 1882, to set aside the ex parte decree. The Court of first instance rejected the application bat on appeal the appellate Court on 27th April 1905 ordered the ex parte decree to be set aside, the suit to be restored to the original file and to be re-heard. The Munsif re-heard the suit restricting himself, however, to the case of the mortgagors, who had obtained an order in their favour for a hearing. Finally he passed a decree on 5th July 1905 as against all the defendants in favour of the plaintiffs. The decree-holder has now within three years of the date applied for an order absolute. The defendants who contested the claim at the first trial objected that the application was banned by limitation on the ground that the decree of 5th July 1905, was not a decree against them and that a period of more than three years had elapsed from the date of the original decree. The Court of first instance rejected the objection. The lower appellate Court holding that the decree of 5th July 1905 did not affect the objectors in any way and apparently on the ground that the present application was made more than three years from the original decree passed in the case has allowed the objection and set aside the order of the first Court. On appeal It is contended that the original decree was one and indivisible and could not be set aside in part, that the order setting aside the decree set it aside as a whole against all the defendants and that the second decree of July 5th, 1905, was a complete and full decree against all the defendants in the case and the decree-holder is entitled to an order absolute in respect thereof. In my opinion the contention is sound. In the case of Bhura Mal v. Har Kishan Das 24 A. 383, it was distinctly held that when a decree is one and indivisible, it must be set aside in its entirety or not at all, although the application to set aside the decree may be the application of only one of the defendants. The decree was obtained for sale on the basis of a mortgage. It was one it was indivisible in every way and could, therefore, be set aside only in its entirety. To hold otherwise in the present case would be simply to raise once more the difficulty with which this Court had to contend in the case of Gauri Sahai v. Ashfaq Husain 29 A. 623 : A.W.N. (1907) 204 : 4 A.L.J. 552. In that case there were two decrees and two orders absolute and the Court had to hold that the orders of 25th August 1900 and 26th November 1904 operated as one decree for the sale of the entire mortgaged property. In my opinion, the order of April 27th, 1905, setting aside the decree was an order setting it aside in its entirety; the decree of July 5th, 1905, is a decree against all the defendants and the application for an order absolute brought within three years of the date is within time and the decree-holder is entitled to the same.

2. In the case of Mahomed Hamid Ullah v. Tahur-un-nissa Bibi 25 C. 155 : 1 C.W.N. 652, it was held that the word decree, in Section 108 of Civil Procedure Code of 1882, meant the whole decree made in the suit. The provisions of Order 9, Rule 13, of the new Civil Procedure Code fully show what has to be done in the case of a decree which is one and indivisible.

3. In my opinion, the order of the lower Court was incorrect. I allow the appeal, set aside the order of the lower Court and re-instate that of the Court of first instance. The appellants will have their costs throughout.


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