1. The appellant sued on a promissory note made by the 1st defendant alone and joined the undivided nep-new of the 1st defendant as a party (2nd defendant) to the suit on the ground that the promissory note was for a debt binding on the family including the 2nd defendant.
2. Neither defendant appeared and District Munsif on the 25th August 1899 passed a decree ex parte against both the defendants, which, as properly construed, means that the 1st defendant the maker of the note, is personally liable for the sum sued for and that the plaintiff is entitled to recover the amount decreed also from the interest of the 2nd defendant in the Joint family property. This decree proceeds on the footing that the debt was incurred for a family purpose. The 2nd defendant alone applied under Section 108, C.P.C. alleging that he was not duly served with a summons and praying that the decree passed against him ex parte might be set aside. The District Munsif set aside the decree in to to, that is, as against both the defendants. There being no appeal against such an order it is open to the appellant in appealing against the final decree in the case to object to such order as contrary to law and he accordingly contends that the decree passed ex parte should be restored as against the 1st defendant. In our opinion this contention is well-founded under the circumstances of the case. There is no contention as to the making of the note and the consideration therefor That being so the contention of the 2nd defendant that the debt was one not binding upon him is a defence peculiar to him and not one common to him and the 1st defendant. We are therefore clearly of opinion that the District Munsif was not warranted by law in setting aside the decree as against the 1st defendant as the correctness of the decree does not depend on the character of the debt. If the decision in Mahomed, Hamid-ulla v. Tohurunnissa Bibi I.L.R. 25 Cal. 155 relied upon by the District Judge really means that if an application made by any one defendant under Section 108 of the Code of Civil Procedure be granted, the whole decree must be set aside in favour of all other defendants whether ex parte or not and whether they applied under Section 108 or not, we are with great respect unable to concur. But having regard to the decision of the same Bench in the subsequent case of Monomohini Chowdharani v. Naran Narayan Ray Chowdhri 4 Cal. W.N. 456 we are inclined to think that such is not the effect of that decision.
3. Whatever doubt may exist in a case in which the decree sought to be set aside under Section 108 proceeds on a ground common to the applicant and another defendant who has not applied under that section we entertain no doubt in a case like the present in which the decree does not proceed on a ground common to both the defendants (see Bhura Mal v. Har Krishan Das I.L.R. 24 A. 383. The District Munsif in his revised decree held that the debt was not binding on the 2nd defendant and passed a decree against him merely as the legal representative of the 1st defendant the 1st defendant having died subsequent to the order setting aside the decree ex parte. As in our opinion the decree passed ex parte against the 1st defendant ought not to have been set aside we reverse the decree of the lower Appellate Court and the revised decree of the District Munsif dated 2nd February 1900 and restore his original decree so far as it directs the 1st defendant to pay the amount decreed with interest and costs.
4. The effect of this will be that the decree against the 1st defendant is one which was passed during his lifetime and it will have to be executed against his legal representative under Section 234, C.P.C. In this view the decision of this Court in Ramanayya v. Rangappayya I.L.R. 17 M. 144 as to the effect of attachment before judgment in a case in which the defendant being an undivided member of a Hindu family dies before judgment has no application to the present case.
5. In executing the decree under Section 234 the question as to whether by reason of the attachment pending suit the share of the deceased judgment-debtor should also be regarded as assets of the deceased in the hands of the 2nd defendant will have to be decided.
6. As the appellant has failed against the 2nd defendant he must pay his costs throughout, but he will be entitled to recover his costs though out from the estate of the 1st defendant [See Shaida Husain v. Hub Hussain I.L.R. 25 A. 45 and Tassadug Husain v. Hayat-un-Uissa I.L.R. 25 A. 283.