G.K. Misra, J.
1. Defendant-Judgment-debtor is the petitioner. The opposite party decree-holder filed T.M.S. 46 of 1954 and obtained a preliminary mortgage decree for sale on 12-11-1955. An application for passing a final decree was filed on 8-1-1960. The. Court passed the final decree in the absence of the petitioner without noticing that the application was barred by limitation. In the final decree proceedings, the Court had directed issue of notice on the petitioner.
Though she is a permanent resident of village Sabitrapur in the district of Midnapur in West Bengal where sheresided with her husband and though this address wasgiven in the proceeding upto the passing of the preliminary decree, with a view to keep her in dark and preventing her from objecting to the application for passingof the final decree, which was barred by time, the op-posite party took cut notices giving the address of the petitioner as village Parakhi in the district of Balasore, which is far off from Sabitrapur. The opposite party knew that the petitioner was not living at her father's house at Parakhi, which was in the forcible occupation of one Ramprosad Mandal, an agnate of her father, with whom litigation was going on for the last 7 or 8 years.
The opposite party procured false, return of service to the effect that the petitioner refused to accept service. As the petitioner was not served with notice, she was kept from the knowledge of her right to oppose the application for passing of the final decree. On 27-12-1960, the petitioner was served with notice under Order 21, Rule 22, C. P. C., in the proceeding for execution of the final, decree. She gathered knowledge about the passing of the final decree on the date of service of this notice. On the legal advice of Sri Madhusudhan Das, a senior and experienced member of the Balasore. Bar, the petitioner filed an application on 4-1-1961 under Order 9, Rule 13, C. P. C. for setting aside the ex parte final decree. This application was dismissed on. 28-8-1961 in Misc. case No. 1 of 1961. On 10-10-61 the petitioner filed an application, for review of the final decree which was dismissed on. 28-7-1962, The Civil Revision has been filed against the order of dismissing the application for review.
2. The learned Munsif recorded the following findings:
(i) the application for final decree was barred by limitation under Article 181 of the Limitation Act as it had not been filed within 3 years from the date of the preliminary decree, or from the date directing payment of the mortgage money and, that there was an error apparent on the face of the final decree.
(ii) the opposite party-decree-holder did not take notice of the correct address and had donel so with an ulterior motive and thereby kept the petitioner front the knowledge of her right to resist the application for passing the final decree on the ground of limitation, and that the petitioner was entitled to extension of time when the fraud first became known to her on 27-12-1960 when the notice under Order 21, Rule 22 C. P. C. was served; and
(iii) The petitioner is not entitled to the exclusion, of the period from 4-1-1961 to 28-8-61 spent in the proceeding under Order 9, Rule 13 C. P. C. in Misc. Case No. 1 of 1961 and that the application for review is barred by limitation under Article 173 of the Limitation Act, as it was not filed within 90 days from the date of the ex parte final decree.
3. Mr. Mukherji does not dispute tnat the notice of the final decree proceedings was not served in the proper address and that by means of fraud the petitioner was kept from the knowledge of her right to object to the passing of the final decree, and of her right to file an application for review of the final decree, and that the time, limited for making the application for review, shall be computed from 27-12-1960 under Section 18 of the Limitation Act, when the fraud first became known to the petitioner.
It is also not disputed that if the period from. 4-1-61 to 28-8-61 is excluded under Section 14(2) of the Limitation Act, the application for review, filed on 10-10-1961 is within time and that there is an error apparent on the face of the final decree which could not have been passedas the application was barred by limitation under Article 181. He, however, contends that Section 14(2) of the Limitation Act cannot save the aforesaid period and that the petition for review is barred by limitation.
4. The only point for consideration is whether the period spent in proceeding under Order 9, Rule 13, C. P. C. would be excluded under Section 14(2) of the Limitation Act. In this connection, the following questions of law arise for determination -
(i) Whether the final decree proceedings would be vitiated in the absence of notice on the defendant?
(ii) Whether Order 9, Rule 13, C. P. C. is applicable to setting aside the ex parte final decree?
(iii) Is the petitioner entitled to exclusion of the time from 4-1-1961 to 28-8-1961 under Section 14(2) of the Limitation Act?
5. In Surendra Kumar Singh v. Mukund Lal Sahu, AIR 1949 Pat 68, Ray J. (as he then was), held that though a proceeding for making the decree final was a proceeding in the suit, yet Section 141, C. P. C. did, not apply thereto and that the final decree passed ex parts could not be set aside under Order 9, Rule 13, C. P. C. His Lordship also held that no notice was necessary to be given to the defendant about the plaintiff's application, for making the preliminary decree final and accepted this view by fallowing an unreported Division Bench decision of the Patna High Court. His Lordship, however, expressed himself thus:
'As I am, bound by this decision, irrespective of my personal opinion about these points, I have to follow the same.'
In Forms Nos. 4 and 6 in Appendix D of the First Schedule of the Civil Procedure Code, there is a clear reference that parties should be heard before a final decree is passed. The relevant portions run as -
' Upon reading the preliminary decree X X X X and further orders (if any) x x x x x x x x x and the application of the plaintiff xxxxxx x x x for a final desree and after hearing the parties x.x.x. x.'
Though there is no specific provision in the Code that, the defendant would be heard before the final decree is passed, the prescribed Forms do Indicate that parties must be heard.
That apart, there are several provisions, in the Code for making application for relief without there being any specific provisions for issue of notices of such, applications. Sections 151, 152, 153 Order 6, Rules 16 and 17, Order 21, Rules 58 and 60, Order 22, Rules 3, 4, 9 and 10, Order 25, Rule 1 and; Order 44, Rule 1 are some of the provisions which . do not, expressly prescribe that notices would be issued. It cannot be argued that applications under these provisions can -be disposed bf without hearing the other side.
Moreover, the. maxim audi atteram partem, which means the other side must always be heard, is a fundamental rule of judicial procedure and must be followed.
A reference to Order 34, Rule 8, C.P.C. would show that the day on which the period of redemption allowed by the preliminary decree terminates is not the day fixed for hearing of the suit so that the final decree cart be passed as a matter of course on the mortgagor's failure to pay the mortgage money into the Court within the period. A mortgagor is entitled to make payment into the Court at anytime before a final decree debarring him from all right to redeem is passed. The mortgagor is also entitled to the extension of time on good cause being shown. It is, therefore, essential that notice must be served on the mortgagor of the application for making the decree final.
Section 141, C. P. C. lays down that the procedure provided in this Code in regard to suits shall be followed as far as can be made applicable in all proceedings of any Court of Civil Jurisdiction. It is well settled that the lis continues at least until the final decree is passed. The final decree proceedings are all conducted at theadjourned hearing of the suit and the final decree cannot be passed behind the defendant's back.
In a Bench decision of the Calcutta High Court reported in Suresh Chandra Banerji v. United Bank of India Ltd., AIR 1961 Cal 534, AIR 1949 Pat 68, was noticedand was dissented from. One of the reasons given in the Calcutta case is that when the mortgager-judgment-debtor is represented by a lawyer in the suit before it is completed, there is nothing to show that the authority of the particular lawyer came to an end by the passing of the preliminary decree. The defendant's lawyercontinues on the record after the passing of the preliminary decree during the pendency of the final decree proceedings. Under the rules of the High Court, a copy of the application filed by a party must be served on the opposite party. Accordingly a copy of the application to make the decree final must be served on the lawyer of the defendant.
In the General Rules and Circular Orders (Civil) of the Orissa High Court there are similar provisions and the same reason applies with full force here also. I am satisfied for the reasons discussed by me that the notice in the final decree proceedings is essential and mandatory and AIR 1949 Pat 68 does not lay down good law.
6. It cannot, however, be contended that due to non-service the final decree is null and void. But for settingaside such a decree the provisions of Order 9, Rule 13, C. P. C. are applicable. Section 2(2), C. P. C. defines a decree and the Explanation thereto says -
'A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit.'
In this case, the preliminary decree does not completely dispose of the suit and further proceedings had to betaken. Further proceedings are proceedings in the suit and not proceeding in execution. So long as the suit continues, the defendant continues. A defendant, against whom an ex parte decree is passed, has various coursesopen to him for setting it aside. One of such courses is that he can apply under Order 9, Rule 13 to set aside thedecree on the ground that he was not served with the summons and that there was sufficient cause for his non-appearance. He may institute a suit on the ground of fraud which must be extraneous to everything which has been decided in the suit. He may file an application for review or an appeal against the decree. There is therefore no substantial and valid reason that Order 9, Rule 13, C. P. C. will have no application to an ex parte final decree. This conclusion is covered by authorities (Hirekhan Motikhan v. Mt. Narbada Bai, AIR 1952 Nag 177, Tikaram Namaji v. Tarachand Gujoba, AIR 1954 Nag 135and AIR 1961 Cal 534). The view taken in AIR 1949 Pat 68 that Order 9, Rule 13 has no application to an ex parte final decree does not lay down good law.
7. The next point for consideration is whether the petitioner is entitled to the exclusion of time taken in the proceeding under Order 9, Rule 13, C. P. C. under Section 14(2) of the Limitation Act. It lays down:
'In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance, or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.'
There is no dispute that the petitioner was prosecuting the civil proceeding under Order 9, Rule 13 with due diligence in the trial Court against the opposite party for the same relief of setting aside the final decree on the ground that it was barred by limitation. The dispute centers round the questions whether the proceeding was prosecuted in good faith, and. whether the Court was unable to entertain either from defect of jurisdiction or from other cause of a like nature.
'Good faith' is defined in Section 2(7) of the Limitation Act as --'Nothing shall be deemed to be done in good faith which is not done with due care and attention.'
It was held in a Bench decision of this Court reported in Triumala v. Panasa, ILR 1956 Cut 135 : ( (S) AIR 1956 Orissa 124) that the Court is to examine and scan the conduct of the lawyer. If on scrutiny, it is found that the conduct of the lawyer was palpably negligent, and the view taken by him was unreasonable, the plaintiff is to suffer for the conduct of his counsel. If the mistake could have been committed by any senior member of the Bar, the client is entitled to the condonation of delay. This must be determined with reference to the facts and circumstances of each particular case. This view is also supported by Rajendra v. Rajeshwar, AIR 1937 PC 275.
On this aspect, the petitioner's case is that she engaged Sri M.S. Das, a senior and busy lawyer of the Balasore Bar, having about 39 years of practice, who advised her to prosecute the proceeding under Order 9, Rule 13, C. P. C. Sri Das did not know AIR 1949 Pat 68 laying down that such a proceeding is not maintainable and he came to know of this decision at the time of argument when the other side cited it and that thereafter he advised the petitioner not to pursue it higher up and to file the application for review. The question is whether the mistake, committed by Sri Das, is one which could have been committed by any senior member of the Bar. The answer is in the affirmative.
Ordinarily it would not strike even a seasoned top ranking lawyer that Order 9, Rule 13 has no application to an ex parte final decree. In terms, Order 9, Rule 13 speaks of setting aside an ex parte decree, and as final decree is covered by the definition of decrees in Section 2(2), C. P.C., it would not strike a senior lawyer that a contrary view is possible. If no such doubt is entertained, due care and attention necessary for investigation of such a point would not be forthcoming. That would not, however, mean absence of due care and attention. It only implies that due care and attention required in the facts and circumstances of a particular case would not put the Senior Advocate on the guard that such a lacuna is likely to emerge in the case.
In my view, the proceeding under Order 9, Rule 13, C.P. C. was being prosecuted in good faith. The advice not to further pursue the proceeding under Order 9, Rule 13, C. P. C., after AIR 1949 Pat 68 was brought to the notice of Sri Das, and to file the application for review, had also been given in good faith. The judgment in AIR 1949 Pat 68 was delivered in 1946. The Orissa High Court came into existence in 1948. All the Subordinate Courts in Orissa were under the Patna High Court till then and were bound by its decisions. The subordinate Courts were to follow the decisions of the Patna High Court in preference to those of other High Courts prior to the inauguration of the Orissa High Court. In that view of the matter, SriDas rightly took the view that there was little chance of success in pursuing an appeal against the order rejecting the application under Order 9, Rule 13, C. P. C. On the position of law, as it then stood, the change of legal advice was done in good faith.
Mr. Mukherjj, however, contends that the learned Munsif hearing the proceeding under Order 9, Rule 13, C. P. C. had no defect of jurisdiction to hear such a case. This view is correct and is not assailable. He further contends that the learned Munsif was not unable to entertain the proceeding under Order 9, Rule 13, C. P. C. from other cause of a like nature, in Jai Kisnen v. Peoples Bank of Northern India, A.I.R. 1944 Lah 136 (F B), their Lordships admirably elucidated the legal position. The words 'or other cause of a like nature' in Section 34 of the Limitation Act must be read so as to convey something 'ejusdem generis' or analogous with the preceding words relating to the defect of jurisdiction. It these words are read along with the expression 'is unable to entertain', they would denote that the defect must be of such a character as to make it impossible for a Court to entertain the suit or application either in its inception or at all events as to prevent it from deciding it on its merits.
It is not possible to give an exhaustive list of defects that these words may be taken to cover. But if they are such as have got to be decided before the merits of the case can be gone into and if they do not necessitate an examination of the merits of a case, they may fall within the purview of these words. If, on the other hand, the Court has got to go into the merits before a case can be dismissed, the defect wilt not come withinthe ambit of these words. Illustration of such defects which are covered by the words 'or other cause of a like nature' in Section 14 may be found in cases where a suit had failed because it was brought without proper leave or because no notice under Section 80, C. P. C. was given or because of non-production of the Collector's Certificate required by Section 6, Pensions Act.
These go to show that although the Court had jurisdiction to decide them, it was unable to entertain them on account of a technical defect and it was not possible for the Court to proceed and consider them on their merits. It would foliow that if a plaint or a petition does not disclose a cause of action, it will have to. be rejected, but the time spent in its prosecution cannot be excluded under Section 14. The fact of the matter is that if on the facts the relief asked for by a plaintiff or a petitioner is found by the Courts to have been misconceivedeither because it is not warranted by the facts mentioned by them or because the facts stated, in the plaint or the petition do not disclose a good and complete cause of action and the plaint or petition is consequently dismissed or rejected, the provisions contained in Section 14 could not be of any help. The same view has been taken in Lal Bihari Lall v. Bani Madhava, AIR 1949 Pat 293 (FB) and Janki Prasad v. Ram Kripal, AIR 1951 Pat 486.
In this case, the proceedings under Order 9, Rule 13, C. P. C. did not fail on the merits wherein the learned Munsif observed as -
'Having regard to all the circumstances on record I have not the least hesitation to hold that the notices were fraudulently suppressed in the final decree proceedings in connivance with the opposite party and that the petitioner learnt of the ex parte decree on 27-12-1960.'
It did not fail on account of defect of jurisdiction as the Court had jurisdiction to determine the proceeding under Order 9, Rule 13, C. P. C. But it failed on account of a defect of an analogous nature as on account of the decision in AIR 1949 Pat 68, which the Court was bound to follow it, it had to hold that the relief could not be granted even though on. the merits the petitioner was entitled to succeed. On the authority of the Patna High Court, the defect was of such a character that it was impossible for the Court to entertain the application either at its inception or at any rate to decide on merits. I am clearly of opinion that the trial Court was unable to entertain the application under Order 9, Rule 13, C. P. C. from other cause of a like nature and the petitioner is entitled to the exclusion of time under Section 14(2) of the Limitation Act.
8. As the petitioner is entitled to the exclusion of time, under Section 18 of the Limitation Act on account of fraud till 27-12-1960, and to the exclusion of the period covered by the proceedings under Order 9, Rule 13, C. P. C. from 4-1-1961 to 28-8-1961 under Section 14(2) of the Limitation Act, the application for review is within time. It being conceded that the application for passing the final decree was filed beyond the period or limitation and that such an error was apparent on the face of the decree, the final decree must be reviewed and it must be held that it is barred by time and that no final decree can be passed. The final decree must accordingly be quashed.
9. In the result, the Civil Revision succeeds and is allowed. But in the circumstances, parties to bear their own costs throughout.