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Mst. Suraj Kunwar Vs. Champalal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 23 of 1960
Judge
Reported inAIR1961Raj281
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantMst. Suraj Kunwar
RespondentChampalal and ors.
Appellant Advocate M.M. Vyas and; H.N. Kalla, Advs.
Respondent Advocate Hastimal and; B.N. Chanda, Advs.
DispositionRevision allowed
Cases ReferredIn Suryaprakas Rao v. Shriramulu
Excerpt:
- - but in exceptional cases contemplated by the proviso, it can be set aside against all or any of the other defendants. assuming that it may be held in favour of champalal, pukhraj and ratanchand that the plaintiff had failed to prove the loan, the suit against them will be dismissed and the decree passed against them will be a decree dismissing the suit against them. if the criterion of possibility of conflicting findings were to be accepted then the exception will become the rule and the intention of the legislature will be defeated......passed under order 9, rule 13 c. p. c. by the additional civil judge, jodhpur setting aside an ex parte decree not only against those defendants who had applied for setting aside the ex parte decree against them but also against the other defendants who had not so applied.2. the plaintiff instituted the present suit on 5-4-1956 against six defendants--labhchand, ratanchand, vardhmanchand, champalal, gulraj and pukhraj, on the allegation that they were partners of the firm 'vijailal champalal', that labhchand and champalal were the managers of the firm, that the plaintiff had money lending dealings with this firm, that the firm borrowed rs. 3,000/- from the plaintiff on poh sudi 6 sambat 2009 agreeing to pay interest at annas -/10/- per cent per month, that on kartik sudi 1, labhchand.....
Judgment:

Jagat Narayan, J.

1. These are connected revision applications filed by the plaintiff against two orders purporting to have been passed under Order 9, Rule 13 C. P. C. by the Additional Civil Judge, Jodhpur setting aside an ex parte decree not only against those defendants who had applied for setting aside the ex parte decree against them but also against the other defendants who had not so applied.

2. The plaintiff instituted the present suit on 5-4-1956 against six defendants--Labhchand, Ratanchand, Vardhmanchand, Champalal, Gulraj and Pukhraj, on the allegation that they were partners of the firm 'Vijailal Champalal', that Labhchand and Champalal were the managers of the firm, that the plaintiff had money lending dealings with this firm, that the firm borrowed Rs. 3,000/- from the plaintiff on Poh Sudi 6 Sambat 2009 agreeing to pay interest at annas -/10/- per cent per month, that on Kartik Sudi 1, Labhchand executed a 'writing' on behalf of the firm about this loan and that as repayment was not made in spite of demands, the present suit was being instituted. Summonses were issued to all the six defendants. They were returned with the report that they had been duly served. On the date of hearing, none of the defendants appeared in the court. The court considered that the defendants had been duly served and on 6-12-1956, an ex parte decree was passed against all the defendants.

3. One application for setting aside the ex-parte decree was made by Pukhraj and Champalal defendants on 21-2-1957. Another similar application was made by Ratanchand defendant on 8-7-1957. Both these applications were allowed by the learned Additional Civil Judge, Jodhpur on 11-12-1959. In allowing these applications, the learned Additional Civil Judge not only set aside the ex parte decrees passed against Pukhraj, Champalal and Ratanchand who had filed applications under Order 9, Rule 13 C. P. C. but he also set aside the decrees passed against the remaining three defendants--Labhchand, Vardhmanchand and Gulraj. In doing so, he relied on Bhuramal v. Harkishandass, ILR 24 All 383 (FB). On behalf of the applicant, it is urged that on the allegations made in the plaint, each of the defendants was personally liable to the extent of the whole amount due in respect of the loan on the date of the suit and the proviso to Rule 13 of Order 9 C. P. C. is not applicable as the decree is not of such a nature that it cannot be set aside as against Pukhraj, Champalal and Ratanchand defendants only who had applied for setting aside the ex parte decree.

In support of the contention, reliance is placed on a Division Bench decision of this Court in Raj Kumar v. Kishenlal, ILR (1953) 3 Raj 422. In that case, a suit for specific performance of a contract for sale had been decreed ex parte against nine defendants including one Raj Kumar. Raj Kumar applied for setting aside the ex parte decree and on his application, only the ex parte decree passed against him was set aside and not the ex parte decree against the remaining eight defendants. It was urged on behalf of the defendants that the decree was of such a nature that it could not be set aside against Raj Kumar alone. This argument was repelled on the ground that it could not be said that the ex parte decree could not be set aside against Raj Kumar only within the meaning of the provisions of Order 9, Rule 13 C. P. C. It was observed;

There is nothing to prevent the sale deed being executed by the remaining defendants and the vendee will take consequences of the sale-deed, being executed by some of those who were party to the contract of sale'.

4. It is not disputed that this decision is applicable to the facts of the present case but Mr. Hastimal contends that the decision requires reconsideration. I am, however, respectfully in full agreement with the decision,

5. Order 9, Rule 13 C. P. C. 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 make an order setting aside the decree as against him 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:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also'.

6. This Rule corresponds with Section 108 of the Code of 1882. The words 'as against him' have been added after the words 'shall make an order setting aside the decree'. The proviso to the Rule is also new. There was a conflict of opinion as fo the interpretation of the wordings of the old Section 108 as it stood prior to the amendment of 1908. Some courts took the view that even if there was a common cause of action against all the defendants and the suit proceeded on a ground common to all, yet the ex parte decree could be set aside only against the defendants who had actually applied for setting it aside : Manaku v. Sitaram Atmaram, ILR 18 Bom 142. The other view was radically opposite. It held that the language of Section 108 C. P. C. showed that the words 'decree' and 'suit' had been used in the widest possible sense and therefore the whole suit had to be restored even in favour of those defendants who had not applied -- Maclean, C. J., in Mahomed Hamidulla v. Tohurenissa Bibi, ILR 25 Cal 155. Banerji J., the other learned Judge who was a party to the decision, however, based his decision on a different ground which he expressed thus:

'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 re-opened'.

In other words, he chose to act under the inherent powers of the court to make such orders as may be necessary for the ends of justice.

7. These conflicting views have been elaborately discussed in the judgment of the learned Chief Justice in the Full Bench case of Khagesh Chandra v. Chandra Kanta, AIR 1954 Assam 183.

8. Under the present Code, two significant changes were effected in the Rule as mentioned above. These changes leave no room for doubt that as a general rule, the decree is to be set aside as against the person making an application under Order 9, Rule 13 C. P. C. But in exceptional cases contemplated by the proviso, it can be set aside against all or any of the other defendants.

9. By these changes, an express provision has now been made in the law to deal with all contingencies and there is no room for the exercise of I the inherent powers of the court. I do not see why a defendant against whom an ex parte decree has been passed, should not himself come forward and apply for setting it aside and why it should be in the interest of justice to set aside the ex parte decree against him on the application of other defendants.

10. Mr. Hastimal has contended on behalf ot the respondents that it would be in the interest of justice to set aside the ex parte decree against the other defendants also as, if this is not done, conflicting decrees may be passed in the same suit. He has argued that Champalal, Pukhraj and Ratan-chand may be able to prove that the document on which reliance is placed on behalf of the plaintiff, is a forgery and that no money was ever advanced to the firm. Assuming that this is so, it cannot be said that this will give rise to conflicting decree's. 'Decree' is defined under Section 2(2) C. P. C. It means the formal expression of an adjudication. Now so far as the decrees in the present suit are concerned, the ex parte decree against Labhchand, Vardhmanchand and Gulraj decrees the suit in favour of the plaintiff for the whole amount. The grounds on which this decree is based are not part of the decree. The statement of grounds on which a decree is based is contained in the 'judgment' which is defined wider Section 2(9) C. P. C.

Assuming that it may be held in favour of Champalal, Pukhraj and Ratanchand that the plaintiff had failed to prove the loan, the suit against them will be dismissed and the decree passed against them will be a decree dismissing the suit against them. That decree will not contain any grounds. The grounds will be contained in the judgment. Thus it will be seen that there will be no conflicting decrees in the suit. There will only be conflicting judgments. If the criterion of possibility of conflicting findings were to be accepted then the exception will become the rule and the intention of the Legislature will be defeated. For a suit can be brought against several defendants only when the same cause of action or several causes of action arise against them jointly. If the suit is decreed ex parte against any one or more of them, them will always be the possibility of its being dismissed against one or more of the remainder of them.

11. The rulings given under Section 108 of the old Code are not applicable to the present Rule 13 of Order 9 on account of the material changes pointed out above. Some rulings given under the present Code were also referred to by Mr. Hastimal.

12. In Nanakchand v. Hazarimal, AIR 1936 Lah 243 sufficient facts have not been given so as to indicate whether or not it was possible to maintain the ex-parte decree against one defendant in that case. In Chandulal Ghanshayam Das, Firm v. Saraswati Sugar Syndicate Ltd., AIR 1938 Lah 823 an ex parte decree against the firm was set aside and under the proviso, the ex parte decree against the partners in respect of the same liability was also set aside. This case is covered by the proviso in my opinion and does not support Mr. Hastimal's contention. In Suryaprakas Rao v. Shriramulu, AIR 1931 Mad 6, Order 9, Rule 13 was not applicable at all.

13. I am, therefore, respectfully of the opinion that the view taken in ILR (1953) 3 Raj 422 does not require reconsideration. The proviso to Rule 13 should be confined to cases where the decree is of such a nature that it cannot be set aside as against some defendants only. An example of such a decree is a decree passed in a suit for pre-emption or for redemption.

14. I accordingly allow the revision application and set aside the orders of the learned Additional Civil Judge in so far as they purport to set-aside the ex parte decrees passed against Labhchand, Vardhmanchand and Gulraj defendants. These ex parte decrees are restored.

15. In the circumstances of the case, I directthat parties shall bear their own costs of these revision applications.


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