1. The first question raised by the opposite party in showing cause against this Rule is that the case does not come within Section 622 of the Code of Civil Procedure, inasmuch as the Court below has only committed an error of law in the construction it has put upon Section 108 of that Code. That question seems to me to be concluded by the judgment of the Full Court in the case of Jogodanund Singh v. Amrita Lal Sircar (1895) I. L. R. 22 Calc. 767, and, therefore, I do not propose, as that authority binds us, to say anything more upon that point. The decision of this Court in the case of Mathura Nath Sarkar v. Umes Chandra Sarkar (1897) 1 0. W. N. 626, is distinguishable from the case before the Full Court, to which I have already referred.
2. The question then arises whether the representatives of the original defendant are entitled to apply to have the ex-parte decree against their predecessor in title set aside under Section 108 of the Code of Civil Procedure. I am unable, speaking with every respect, to accept the view taken by the Allahabad High Court in the case of Janki Prasad v. Sukhrani (1899) I. L. R. 21 All. 274. That decision appears to me to be based upon too narrow a construction of the section and one which might lead to various anomalies and much injustice, and, unless we are actually compelled by the language used to place such a construction upon it, I think we may fairly decline to do so. No doubt the section only refers to the defendant, but we may look at the whole Code to see who is meant by that term and who fills that position. There is ample provision in the Code for bringing the representatives of a deceased defendant before the Court and substituting the former for the latter, and when that substitution has been duly effected such representatives become the defendants and subject to all the obligations, qua procedure, of the original defendant. And, if they become subject to the obligations, why are they not entitled to the rights and benefits, qua procedure, of the original defendant? In the present case the plaintiff himself has brought the representatives of the original defendant upon the record and has made them defendants. The decree is binding upon them as such representatives and, if they are bound by the decree, as they are, it would be inequitable that they should not enjoy the same right under Section 108 as the original defendant enjoyed, If they are to bear the burden, they may fairly claim the same 'benefits as their predecessor in title enjoyed. Looking at the; Code as a whole, I think Section 108 is fairly open to the construction I have put upon it, and, in my opinion, if the representatives of a deceased defendant are substituted in his place on the record, they enjoy the same rights under Section 108 as the original defendant did. The Rule must be made absolute with costs.
3. I am of the same opinion. It is contended by the learned vakil for the opposite party that this case does not come within the scope of any of the three clauses of Section 622 of the Code of Civil Procedure. Upon the question of the construction of that section, this is what I said in the case of Mathura Nath Surkar v. Umes Chandra Sarkar (1897) 1 C. W. N. 626, which is one of the cases relied upon by the learned vakil of the opposite party. ' The construction of these three clauses of Section 622 has given rise to much conflict of opinion. It may, however, be now taken as authoritatively settled by the decision of the Privy Council, in the case of Birj Mohun Thakur v. Rai Uma Nath Chowdhry (1892) I. L. R. 20 Calc. 8, that a case comes within the scope of the first two clauses, not only where a Court has tried a case which it has no power to try or has failed to try one, which it has power 'to try; but also where it has applied a course of procedure, which is not applicable to it, or has failed to apply to it a course of procedure, which is applicable. To that view I still adhere; and I may add that the case of Jogadanund Singh v. Amrita Lai Sarkar (1895) I. L. R. 22 Calc. 767, also supports that view. Now the Court below, in holding, erroneously, as we think, that the procedure prescribed by Section 108 of the Code of Civil Procedure for enabling a party defendant to apply to the Court to have an ex-parte decree set aside, was inapplicable to this case by reason of the applicant being, not the defendant, against whom the ex-parte decree was made, but his legal representative, has, practically, failed to exercise a jurisdiction vested in it by law, the jurisdiction, namely, to try the summary case initiated by the application of the petitioner.
4. Then with reference to the ground upon which the Lower Court has held that Section 108 of the Code is inapplicable to this case, it is, I think, enough to say that when by Section 234 of the Code, the ex-parte decree is binding on the legal representatives of the deceased defendant, and when the opposite party has taken out execution proceedings against the petitioner as the legal representative of the deceased defendant, there can be no valid reason why the petitioner should be deprived of the remedy prescribed by Section 108, which may be the only remedy available to him against the ex-parte decree. It is true Section 108 speaks of the defendant applying to have the ex-parte decree set aside; but it is no unreasonable straining of language to say that the defendant there includes the legal representative of a deceased defendant. I must, therefore, respectfully dissent from the view taken by the learned Judges of. the Allahabad High Court, who decided the case of Janki Prasad v. Sukhrani (1899) I. L. R. 21 All. 274.