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Dulal Chandra Chowdhury Vs. Atul Krishna Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal506,157Ind.Cas.876
AppellantDulal Chandra Chowdhury
RespondentAtul Krishna Roy and ors.
Cases Referred and Radha Kisson v. Tansuk Mahesri
Excerpt:
- .....but on the date fixed for hearing (22nd may 1934) he failed to appear with the result that an ex parte decree was passed against him on the same date. on 26th may 1934, opposite party 1 made an application under order 9, rule 13, civil p. c, to set aside the ex parte decree. he mentioned in his application the number of the suit but in naming his opponents he mentioned the name of upendra nath chowdhury only and omitted to put in the petitioner's name. notice of the application was served on upendra nath chowdhury alone who appeared and contested the said application. on 11th august 1934 it was discovered that the notice of the application had not been issued to the petitioner. on the said fact being pointed out to the court, the court directed the notice of the application under order.....
Judgment:
ORDER

R.C. Mitter, J.

1. This rule has been obtained by plaintiff 2 in a suit for damages for malicious prosecution instituted against the opposite party 1. It appears that opposite party 1 launched unsuccessfully a criminal prosecution against the petitioner and his father, Upendra Nath Chowdhury. On the termination of the criminal proceedings Upendra Nath Chowdhury, as plaintiff 1, and the petitioner, as plaintiff 2, instituted the said suit for damages. Opposite party 1 filed his written statement but on the date fixed for hearing (22nd May 1934) he failed to appear with the result that an ex parte decree was passed against him on the same date. On 26th May 1934, opposite party 1 made an application under Order 9, Rule 13, Civil P. C, to set aside the ex parte decree. He mentioned in his application the number of the suit but in naming his opponents he mentioned the name of Upendra Nath Chowdhury only and omitted to put in the petitioner's name. Notice of the application was served on Upendra Nath Chowdhury alone who appeared and contested the said application. On 11th August 1934 it was discovered that the notice of the application had not been issued to the petitioner. On the said fact being pointed out to the Court, the Court directed the notice of the application under Order 9, Rule 13 to be served upon the petitioner. The application under Order 9, Rule 13 was allowed to stand in its original form. On the said notice being served on the petitioner the Court took up the hearing of the application and allowed it by an order dated 19th September 1934. The Court held that on 22nd May 1934, the date of the ex parte decree, the opposite party 1 was very ill and that there was sufficient cause for his non-appearance on that date, but inasmuch as he failed to inform his pleader about the fact and nature of his illness, the Court made an order vacating the ex parte decree on terms. It directed the opposite party 1 to put in Court within ten days a sum of Rs. 15 as compensation to the plaintiffs. On the date of the order Upendra Nath was alive but he died between that date and 29th September 1934, when the said sum of Rs. 15 was deposited in Court by the opposite party 1. On 29th September before the heirs of Upendra Nath were brought on the record the Court recorded the final order setting aside the ex parte order. The petitioner has taken before me two points, namely: (i) that the application to set aside the ex parte decree as made on 26th May 1934 was defective inasmuch as the petitioner had not been named therein as an opposite party, and assuming that he was made an opposite party on 11th August 1934, when the Court directed the issue of the notice of the application to him, the bar of limitation was then an insurmountable bar, and (ii) that the order of 29th September 1934 is bad, as it was passed in the absence of the legal representatives of Upendra Nath who was dead shortly before that date.

2. I do not see any substance whatsoever in the second point. Evidence had been led, arguments heard and judgment was pronounced on 19th September 1934 when Upendra Nath was alive. The order was then passed in a conditional form requiring the opposite party 1 to put in Rs. 15 within ten days. The order stated that if the money was put in within the said time the ex parte decree would be set aside, otherwise it will stand. The order of 19th September was a self-contained and complete order. In these circumstances the fact that Upendra Nath died just before the formal and consequential order of 29th September and his legal representatives were not then brought on the record at that time would not in my judgment derogate from the force of the said order. The matter is covered in my judgment, by the principles underlying Order 22, Rule 6 of the Code. I accordingly overrule the said point. Regarding the first point also, I do not think that there is much substance in it, although the case seems to be of first impression. Order 9, Rule 13 requires an application for setting aside an ex parte decree and Rule 14 provides that no such application is to be granted without notice of the application being given to the opposite party, that is to the person or persons in whose favour the ex parte decree has been passed. The necessity of making such persons as parties to an appeal against the order refusing to set aside the ex parte decree stands on a different footing. They must be named respondents in the memorandum of appeal; but so far as the first Court is concerned there is no provision in the Code for naming them as parties in the application. All that is necessary is that an indication should be given in the application of the particulars of the suit in which the ex parte decree had been passed. If the suit is so indicated there is no difficulty in finding out from the records of the case on whom the notice of the application has to be given. It would be then the duty of the Court to direct the issue of notice on such persons and the duty of the applicant would only be to deposit the process fees and to cause service of the notices.

3. In this respect the cases dealing with this point in connection with applications made for setting aside Court sales under Order 21, Rr. 89 and 90, are helpful. The proviso to Order 21, Rule 92 is pari materia with the provisions of Order 9, Rule 9 and Order 9, Rule 14. It has been held that the parties who would be affected by an eventual order under Order 21, Rule 92 need not be named as parties in the application to set aside the sale, and as there is no time limit for the issue and service of the notice of the application, except that it must be before the final order is passed, the application would be regarded as a good application if no persons are named in the application as opposite parties, and the order passed would be a good order even if the notice is served beyond 30 days of the date of the sale: Dip Chand v. Sheo Prasad, 1929 All 598; Nitai Dutta v. Bishun Lal, 1932 Pat 255 and Radha Kisson v. Tansuk Mahesri, 1935 Cal 502. I accordingly overrule the first point also and discharge the rule with costs; hearing fee one gold mohur.


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