Sankar Prasad Mitra, J.
1. This Rule has been obtained against order No. 42 dated the 23rd October, 1971 in Miscellaneous Case No. 28 of 1971 (arising out of Title Suit No. 58 of 1970) passed by the Second Subordinate Judge, Alipore. It appears that on the 17th August, 1970, the plaintiff instituted a suit for specific performance of contract for transfer of Aleya Cinema to the plaintiff and, alternatively, for a decree for Rs. 1,12,314.83 and for other reliefs. On November 25, 1970 an ex parte decree was passed in the Suit. The defendant, by this decree, was directed to execute and register a Deed of Transfer in respect of the said Cinema. The decree was sealed and signed on the 5th December. 1970. On January 27, 1971 notice of the Title Execution Case No. 3 of 1971 was stated to have been served on the defendant. Since the defendant did not appear, on the 27th February, 1971, the Court executed an Indenture of Conveyance. On the 1st March, 1971 the conveyance was registered.
2. On April 13, 1971 the defendant made an application under Order 9. Rule 13 of the Code on the ground of fraudulent suppression of summons. A Miscellaneous Case was started, being Miscellaneous Case No. 28 of 1971. The learned Trial Judge recorded the evidence of witnesses of both the parties and ultimately came to the conclusion that neither the summons nor the notice of the execution case was served on the defendant. The learned Subordinate Judge set aside, in the premises, the ex parte decree by his order under challenge.
3. Mr. Sankardas Banerjee, learned counsel for the petitioner before us, opened his case by inviting us to consider the depositions of the various witnesses who were examined by the learned Subordinate Judge. Mr. Banerjee wanted us to hold that the evidence adduced by these witnesses had not been properly appredated. We pointed out to him that in the exercise of our revisional jurisdiction we could not go into these questions. It may be that the Subordinate Judge is in error in his appraisal of the evidence adduced before him. But unless the error is a jurisdictional error, either of law or of fact, while exercising our powers under Section 115 of the Code, we cannot interfere with the order passed by him. In this connection it would be enough to refer to one of the earlier decisions of the Supreme Court as also to its latest decision. In the case of Keshardeo Chamria v. Radha Kishan Chamria. : 4SCR136 , it has been pointed out that as the order of the Subordinate Judge was one that he had jurisdiction to make and as he had, in making that order, neither acted in excess of his jurisdiction nor with material irregularities nor committed any breach of procedure, the High Court, acted in excess of its revisional jurisdiction under Section 115 of the Code and the order of remand and all proceedings taken subsequent to that order were illegal. The Supreme Court categorically reiterated that Section 115 applied to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it and if a subordinate Court had jurisdiction to make the order it had made and had not acted in breach of any provision of law or committed any error of procedure which was material and might have affected the ultimate decision, the High Court had no power to interfere however profoundly it might differ from the conclusions of that court on questions of fact or law.
4. The latest decision of the Supreme Court to which our attention has been drawn, is the decision in D. L. F. Housing & Construction Co. (P.) Ltd. v. Sarup Singh reported in : 2SCR368 . In paragraph 8 at page 2327 it has been observed that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The Supreme Court says further that the words 'illegally' and 'with material irregularity' as used in Clause (c) of Section 115 do not cover either errors of fact or of law, they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may. according to the Supreme Court, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The Supreme Court, on the facts before it, has warned that merely because the High Court would have felt inclined had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference in revision under Section 115 of the Code when there was no illegality or material irregularity committed by the Additional District Judge concerned in his manner of dealing with the question.
5. In view of all these well-settled principles it is unnecessary for us to discuss in this judgment the various points which Mr. Banerjee has urged in support of his contention that the Trial Judge has committed errors in his appreciation of the evidence led before him on behalf of the parties. Learned Counsel realised that our jurisdiction in this matter was limited and proceeded to make two substantial contentions. These contentions were: (1) if the defendant Company's case was that service of the summons and service of notice of the execution case were tainted with fraud the remedy lay not in an application under Order 9. Rule 13 but in a properly constituted Suit and (2) an application under Order 9, Rule 13 was not maintainable when an ex parte decree had already been satisfied through execution proceedings duly launched.
6. Mr. Banerjee did not cite any specific authorities in aid of any of his contentions aforesaid. But he cited the case in : AIR1960Cal309 , (Atul Chandra Sarkar v. East Bengal Commercial Bank Ltd.) which according to him gave some support to his first contention. In this case the first defendant East Bengal Commercial Bank Limited obtained a decree in the High Court against the plaintiff and the second defendant. Oriental Trading syndicate, on an overdraft amount on the 20th July. 1949. It was an ex parte decree. The plaintiff Atul Chandra Sarkar did not make any application for setting aside the ex parte decree or prefer any appeal therefrom. He filed a suit on January 21, 1949 claiming a declaration that the ex parte decree of the 20th July, 1948 was void and of no effect and asked that the decree be set aside. The allegations in the plaint were:
(i) On March 16, 1946 an agreement was made by and between the Bank on the one hand and the plaintiff and the second defendant on the other whereby the Bank was to lend to the second defendant the sum of Rs. 5,000/- against securities of bills drawn or to be drawn by the firm, such loan to be guaranteed by the plaintiff.
(ii) In pursuance of this agreement various sums of money were advanced by the Bank to the firm and bills deposited by the firm were collected by the Bank and appropriated towards its dues.
(iii) On May 31. 1946 the plaintiff revoked the said guarantee by notice in writing.
(iv) On May 31. 1946 a sum not exceeding Rs. 3581/6/9 was due by the second defendant to the bank and a number of bills drawn by the second defendant and exceeding the abovementioned sum remained with the bank for collection and appropriation.
(v) Thereafter the firm deposited various bills with the Bank which were duly collected by the Bank thus wiping out the liability of the firm.
(vi) In November, 1948 the Bank purported to execute the decree made on 20-7-1948 and caused to be attached various properties belonging to the plaintiff.
(vii) The writ of Summons was never served upon the plaintiff who had no opportunity to defend the suit filed by the bank.'
7. It was also stated in the plaint that '............... the said decree was obtained ex parte fraudulently by supression of the summons and by perpetrating a fraud upon the Court by suppression of material facts, in particular by suppression of the fact as to the revocation of the guarantee by the plaintiff as aforesaid.'
8. This Court came to the conclusion that the suit was not maintainable. According to this Court mere non-service of summons is not enough to found a cause of action for setting aside a decree; where mere non-service in the complaint the remedies available are (i) application under Order 9, Rule 13 (ii) an appeal from the ex parte decree and (iii) an application for review under Order 47. Rule 1. General allegations of fraud, however, strong the words in which they are stated are insufficient even to amount to an averment of fraud of which any court ought to take notice. The expression 'supression of summons' by itself does not! amount to a sufficient averment of fraud. By itself it means little more than not serving it. Something more would be necessary; there would have to be an averment that there was collusion between the process server and the identifier or that there was a deliberate misleading of the process server or other similar allegations.
9. This case in our opinion is no authority for the proposition that when there are allegations of fraud in the service of summons or the notice of execution the party affected can only take recourse to a suit. Order 9, Rule 13 has its limitations but subject to these limitations there appears to be no bar to an application under this Rule even when theallegation is that there has been a fraudulent suppression of summons. To make the position clear let us try to examine the language of Rule 13 of Order 9. It says: '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 appealing 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: .........'
10. The opening words of the Rule are indeed comprehensive. In every case where the defendant's allegation is either that the summons was not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, the defendant may make an application under this Rule. In other words when any of the two conditions aforesaid is satisfied there is no legal bar to an aggrieved defendant making an application under Rule 13 of Order 9. In the instant case we have gone through the petition for setting aside the ex parte decree. No doubt various allegations relating to fraudulent suppression of summons and of notice of the execution case have been made but the sum and substance of these allegations seem to be that the defendant complains that neither the summons nor the notice was duly served. In these circumstances, we are unable to hold that the application under Order 9 Rule 13 was not maintainable or that the petitioner's only remedy lay in a suit.
11. Let us now discuss Mr. Sankardas Benerjee's second contention namely no application under Order 9, Rule 13 lies when an ex parte decree has been satisfied by execution. Here again Mr. Banerjee did not cite any authorities to support him. He, however, drew our attention to the Bombay High Court's Judgment in Zendoolal Nandlal v. Kishorilal Mehtabhai reported in (1899) ILR 23 Bom 716. The Bombay High Court has held that the fact that an ex parte decree has been satisfied does not disentitle a defendant from applying to the Court to set it aside under Section 108 of the Civil Procedure Code (Act XIV of 1882) which corresponds to Order 9 Rule 13 of the present Code. Mr. Banerjee submitted to us that it was not a sound judgment. But he did nottell us why he thought that the decision should not be followed.
12. In our view, satisfaction of an ex parte decree creates no bar to an application under Order 9 Rule 13. We derive support for this view not only in the Bombay High Court's Judgment but also in several judgments of our Court which have ultimately been approved by the Supreme Court. In Set Umed Mal v. Raja Srinath Ray (1900) 4 Cal WN 692, this Court has held that a sale in execution of a mortgage decree, where the decree-holder is the auction-purchaser must be set aside, when the decree itself is set aside under Section 108 of the Civil P. C.. 1882, even though the sale had been duly confirmed.
13. In Raghu Nandan Singh v. Jugdish Singh (1910) 14 Cal WN 182 an ex parte decree and sale under it were set aside and after a rehearing a decree was again passed against the judgment-debtors. This Court has held that the principle of Section 144 of the Code of Civil Procedure cannot be availed of to set aside the order setting aside the sale. When a decree has once been set aside under Section 108, Civil P. C. (Act 14 of 1882), it cannot by any subsequent proceeding be taken to be revived. If a decree is passed against the judgment-debtors on rehearing it is a new decree and does not revive the former decree. At page 182 it is observed: 'It is argued that we are to apply by analogy the principle of restitution provided in Section 144 of the new Code corresponding with Section 583 of the old Code. This appears to us not to be applicable. After the decree has once been set aside under Section 108 it cannot by any subsequent proceeding be taken to be revived and proceedings under it are consequently invalid. We do not see how we can extend the principle laid down on appeal by Section 144, nor can we see any reason why it should be necessary to do for the decree passed in the rehearing is a new decree so far as the defendants Nos. 4, 7 and 8 are concerned on account of some defect in the trial.'
14. The next case is a stronger one. It is the case of Abdul Rahaman v. Sarafat Ali reported in 20 Cal WN 667 = (AIR 1916 Cal 710). It has been held in this case that the assignee from the decree-holder who has purchased property in execution of his own decree is in no better position than his assignor and the sale is set aside when the decree is set aside even when the decree-holder has sold the property to a stranger. As soon as an ex parte decree is set aside, the sale where the decree-holder is the purchaser, falls through and is not validated by a fresh decree subsequently made.
15. All the authorities cited above point to the conclusion that even when an ex parte decree has been fully executed it is open to the Court to set aside the decree on proper grounds and when the Court does set it aside the principles of restitution would be attracted.
16. The Supreme Court has considered inter alia the cases reported in 4 Cal WN 692; (1910) 14 Cal WN 182 and 20 Cal WN 667 = (AIR 1916 Cal 710) in its judgment in Binayak Swain v. Ramesh Chandra reported in : 3SCR24 and has explained the doctrine of restitution in relation to an ex parte decree. The Supreme Court has said that the principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the court in making restitution is bound to restore the parties so far as they can be restored to the same position they were in at the time when the Court by its erroneous action had displaced them from. In the case before the Supreme Court in execution of an ex parte decree passed in an appeal by the District Judge, the property of the judgment-debtor was sold and purchased by the decree-holder himself. The High Court subsequently set aside the ex parte decree and the suit was remanded for rehearing and fresh disposal. The SC is of the view that on these facts the judgment-debtor under Section 144 of the Code is entitled to restitution of his properties which the decree-holder had purchased subject to equities to be adjusted in favour of the decree-holder. The Supreme Court has stated further upholding this Court's view expressed in the judgments cited above, that by the passing of a subsequent decree upon a fresh disposal of the suit the execution sale held in the ex parte decree which the High court has set aside was not validated. At the time of the application for restitution, the SC has said, the judgment-debtor was entitled to restitution because on that date the decree in execution of which the properties were sold had been set aside. The Supreme Court says further that the judgment-debtor is entitled to restitution notwithstanding anythingthat happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the tune when the application for restitution was made.
17. We may also refer to the judgment of Mr. Justice Chatterjee in Kushi Mohan Saha v. Subhas Chandra Saha, reported in (1966) 70 Cal WN 1027. Mr. Justice Chatterjee has held that Section 144 of the Code refers to all cases of variation or reversal of the decree including one by an Order under Order 9. Rule 13 of the Code and is not limited to variation or reversal of a decree by a Court of Appeal. If a decree, therefore is set aside by an order under Rule 13 of Order 9 it is varied and as such Section 144 applies. We are in agreement with this view.
18. Lastly, we would refer to the Assam High Court's judgment in Hurmat All v. Matlib All AIR 1952 Assam 111. The Assam High Court has held that where in execution of a decree for specific performance, the plaintiff got the possession of the properties and then transferred them to another person and the decree was reversed on appeal, the defendants were entitled to get restitution under Section 144 from the transferees from the original decree-holder.
19. These authorities are clearly contrary to the submission of counsel for the petitioner that an application under Order 9, Rule 13 could not be made in this case inasmuch as the conveyance had already been executed in favour of the plaintiff pursuant to the ex parte decree. It seems that if the ex parte decree is set aside on an application under Order 9, Rule 13 the principles of restitution laid down in Section 144 of the Code of Civil Procedure would be attracted and the fact that a conveyance has been executed by the Court in the circumstances stated above does not disentitle the defendant from seeking its remedies under Order 9, Rule 13.
20. In these premises this Rule Is discharged and the interim order is vacated. The petitioner will pay to the opposite party the costs of this application hearing fee being assessed at 10 gold mohurs. Let the records be sent back expeditiously.
Salil Kumar Datta, J.
21. I agree.