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Kr. Nandan Singh Vs. Musammat Sundar Kuar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1936All410; 163Ind.Cas.226
AppellantKr. Nandan Singh
RespondentMusammat Sundar Kuar and ors.
Excerpt:
civil procedure code (act v of 1908), order ix, rules 13, 14 - mortgage suit--person impleaded as defendant being subsequent purchaser of part of mortgaged property--whether 'opposite party'--order setting aside ex parte decree without notice to him--legality of. - - as we have already said we do not think that mandan singh could be described as an opposite party, and we cannot, therefore, hold that the order of the court below was bad because mandan singh's name had not been mentioned in the application as one of the persons concerned......asking us in revision to set aside an order passed by the court below which set aside an ex parte decree. the basis upon which the court acted was that the applicant in that application, that is the person who was seeking to get the decree set aside, had not been served with notice and no argument has been addressed to us upon the facts of the case. the contention is that the present applicant who was a party to the suit and a party to the decree was not given any notice of the application to set that decree aside and was not even mentioned in the application as one of the persons concerned. the decree was one for sale en a mortgage. the present applicant, mandan singh, was a subsequent purchaser of a part of the mortgaged property and was a necessary party to the mortgage suit.....
Judgment:

1. This is an application asking us in revision to set aside an Order passed by the Court below which set aside an ex parte decree. The basis upon which the Court acted was that the applicant in that application, that is the person who was seeking to get the decree set aside, had not been served with notice and no argument has been addressed to us upon the facts of the case. The contention is that the present applicant who was a party to the suit and a party to the decree was not given any notice of the application to set that decree aside and was not even mentioned in the application as one of the persons concerned. The decree was one for sale en a mortgage. The present applicant, Mandan Singh, was a subsequent purchaser of a part of the mortgaged property and was a necessary party to the mortgage suit and had been impleaded in that suit. After the ex parte, decree was passed, the property was put to sale and Mandan Singh, purchased a part of it. He had also obtained an order that the sale of the property originally purchased by him should be postponed to the sale of the other property and that it should not be sold if the other property fetched a sufficient price to discharge the liability. The fact was that the other properly did fetch a sufficient price to discharge the liability, and consequently Mandan Singh's property was not put to sale.

2. The argument before us is that Mandan Singh had obtained a definite advantage under the ex parte decree and that the decree should not have been set aside behind his back. We realise that it may perhaps be said that Mandan Singh obtained some advantage in the proceedings consequent upon the ex parte decree although we would notice that his property was liable to contribution even if it was not sold in satisfaction of the decree. We think, however, that this was not a reason why he should have been served with a notice of the application to set the ex parte decree aside. Under Order IX, Rule 14, no decree shall be set aside on any such application, that is an application to set aside an ex parte decree unless notice thereof has been served on the opposite party. The question is whether Mandan Singh can be described as an opposite party. In the suit he appeared in the array of defendants as a subsequent purchaser of a part of the property mortgaged. The decree was for the sale of the whole mortgaged property and

3. on the face of the decree he was prejudiced by it. It did not appear from the decree itself that he had acquired any advantage under the decree. The fact that he may have obtained some subsequent advantage by sale of the property or by purchasing the property sold, possibly at a favourable price, is no reason for regarding him as a person benefited by the decree itself.

4. We think, therefore, that he could not properly have been described as an opposite party, and we see no reason to set aside the order of the Court below upon the ground that it was passed behind Mandan Singh's back. It has been suggested that Mandan Singh was a necessary party to the suit under the provisions of Order XXXIV, Rule 1, Civil Procedure Code, and that he was therefore, a necessary party to all proceedings connected with the suit. We consider that a special rule applies to applications to set aside ex parte, decrees. The only rule is that no ex parte decree shall be set aside unless the opposite party has received notice and has had an opportunity to be heard. As we have already said we do not think that Mandan Singh could be described as an opposite party, and we cannot, therefore, hold that the order of the Court below was bad because Mandan Singh's name had not been mentioned in the application as one of the persons concerned. We consider that there is no force in this application for revision and we dismiss it with costs.


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