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Mahomed Hamidulla Vs. Tohurennissa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal155
AppellantMahomed Hamidulla
RespondentTohurennissa Bibi and ors.
Cases ReferredDookhee Khan v. Rajessuree Ranee
Excerpt:
civil procedure code (act xiv of 1882), section 108 - ex parte decree--effect of a decree set aside at the instance of some only of several defendants against whom the decree passed was ex parte--meaning of the words 'the decree.' - .....of the court below made under section 108 of the code of civil procedure, setting aside an ex parte decree, so far as that order relates to the two defendants who had entered appearance, and against whom it is contended the original decree was not an ex parte decree.2. two questions arise for consideration: first, whether the application to this court comes properly within section 622 of the code of civil procedure; and, secondly, whether the order made by the court below is a right order or not.3. if the contention of the learned vakil for the petitioner, viz., that the order made by the court below was wrong, were correct, i am inclined to think that the case would come under that clause of section 622 of the code, which authorizes this court to interfere in cases in which a.....
Judgment:

Maclean, C.J.

1. I am for my own part not satisfied that this case comes within Section 622 of the Code of Civil Procedure; but in the view I take of the construction of Section 108 of that Code, to which I will advert in a moment, it becomes unnecessary for me to decide that question. The question we have to decide arises under these circumstances: A suit was brought against two sets of defendants upon a promissory note which had been made by two persons, one of whom died before the suit was brought. The suit was brought against the surviving maker of the note and the heirs of the other maker of the note who had, as I have said, died in the meantime. Two of these heirs were purdanashin women, and it appears that the necessary summons was not served upon them, and that the decree as against them was made ex parte in these terms: ' In the result a decree for Rs. 468 be passed in plaintiff's favour together with costs at ex parte scale. The liabilities of the defendants 1 to 3 shall be to the extent of the property inherited by them from the deceased debtor.'

2. The two defendants against whom the decree had been made ex parte made an application under Section 108 of the Code to have the decree set aside. The application was granted, and the decree not only as against the applicants but also as against the other defendants who had appeared and defended was set aside. The question is whether it ought to have been set aside as against all the defendants, or only as against the applicants, the purdanashin women, against whom admittedly the trial had proceeded ex parte. Apparently the point was not mentioned to the Munsif; any way he has not referred to it.

3. The question turns upon the true construction of Section 108 of the Code, the language of which is, perhaps, not so clear upon the point as it might be. The first Clause of the Section somewhat favours the present applicant's contention, but then the latter Clause, after stating that the applicant must satisfy the Court that he was not properly served, goes on to say, 'the Court shall pass an order to set aside the decree' The language is imperative, ' shall set aside the decree.' Now what does 'the decree' mean? It must, I think, mean the decree, the whole decree, made in the suit. It does not say part of the decree: it does not say that part of the decree which affects the interest of the applying defendant alone, but it uses the words ' the decree.' Read according to their ordinary signification and natural meaning the words must mean, I think, that the Court shall set aside the whole decree; and that view is strengthened, I consider, by the last words of the Section, viz., 'and the Court shall appoint a day for proceeding with the suit.' The suit would appear to mean the whole, suit, not merely the suit as against or so far as it affected the particular defendants making the appplication, but the whole suit. There seems to me reason in this view of the Section. If the original decree was allowed to stand as against the original defendants who had appeared and defended the suit, and the suit were only allowed to proceed on the second hearing, if I may call it so, as against the defendants against whom in the first instance the decree had been made ex parte, I can conceive cases in which complications and possibly injustice might result. And it may well be that the Legislature, seeing that difficulties might ensue from making in suits in which there were several defendants a decree against them piecemeal, may have deemed it better that the decree should not be set aside partially, but that the whole decree should be set aside. And I may point out that the plaintiff can hardly be heard to complain, for when the suit came on for hearing he knew perfectly well that he was proceeding against some of the defendants ex parte, and that he was incurring the risk---a fairly certain risk---of having his decree set aside, if he knew, as he must be taken to have known, that he was proceeding against certain of the defendants who had not been served. Nor can the defendants who appeared be heard to complain. They must have known that the other defendants were not in Court to defend, and a very little inquiry would probably have satisfied them that they had not been served. If then those defendants had pointed out to the Court that their co-defendants were not present, and that it was questionable whether they had been served with the requisite summons, and that they were purdanashin women, it is highly probable that the Court would have adjourned the case to give the other defendants an opportunity of being present or at any rate of being duly served. If, then, the whole decree be set aside, I do not think that either the plaintiff or the other defendants have much real ground for complaint.

4. Holding this view, on the best construction that I am able to place on the language of the Section, I think that the Judge in the Court below arrived at a right conclusion, and that the rule must be discharged.

Banerjee, J.

1. I also am of opinion that this rule ought to be discharged. We are asked to reverse an order of the Court below made under Section 108 of the Code of Civil Procedure, setting aside an ex parte decree, so far as that order relates to the two defendants who had entered appearance, and against whom it is contended the original decree was not an ex parte decree.

2. Two questions arise for consideration: First, whether the application to this Court comes properly within Section 622 of the Code of Civil Procedure; and, secondly, whether the order made by the Court below is a right order or not.

3. If the contention of the learned Vakil for the petitioner, viz., that the order made by the Court below was wrong, were correct, I am inclined to think that the case would come under that Clause of Section 622 of the Code, which authorizes this Court to interfere in cases in which a Subordinate Court has exercised a jurisdiction not vested in it by law. For the contention raised on behalf of the petitioner is this, that the Court below, by Section 108 of the Code, was authorized to set aside only that part of the decree which was passed ex parte; and if, in making the order that it has made, it has set aside also that part of the decree that was not passed ex parte, I think that the petitioner may contend that it has, in so doing, exercised a jurisdiction not vested in it by law. This view is in accordance with the decision of the Privy Council in the case of Brij Mohun Thakur v. Rai Umanath Chowdhry (1892) I.L.R. 20 Cal. 8: L. R. 19 I. A. 154 and with the decision of this Court in Jogodanund Singh v. Amrita Lal Sircar (1895) I.L.R. 22 Cal. 767.

4. But, then, is the decision of the Court below wrong, or was the Court below right in reversing the entire decree as it has done, notwithstanding that some of the defendants had entered appearance? Section 108 of the Code 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 made, for an order to set it aside, and if he satisfies the Court that the summons was not duly served, as was the case here, ' the Court shall pass an order to sat aside the decree 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.'

5. The Section, therefore, evidently contemplates the setting aside of the decree made in the suit, and it directs the Court to appoint a day for proceeding with the suit.

6. It was argued that the decree in this case should be treated as a decree partly ex parte and partly not an ex parte decree, and that the Section authorizes the Court to set it aside only so far as it was an ex parte decree. The Section, however, makes no such distinction, and as pointed out in the judgment of the learned Chief Justice, there may be very good reason why the Section did not make any such distinction. It may often happen that the setting aside of the decree as regards some of the defendants renders it necessary in the interests of justice that the whole decree should be re-opened; and the present case is an instance in point. Here, of the two parties who entered appearance, one was one of the executants of the promissory note on which the suit is based, and the other was one of the three persons who are now sued as the legal representatives of another executant of the note, now deceased; and if the decree were to stand as against the defendants who entered appearance, and be set aside only as regards the defendants who did not enter appearance, then, in the event of the suit being dismissed as against the latter, the result would be obviously hard as against the defendant who is sued as one of the heirs of the deceased executant of the note and who had entered appearance at the original hearing. It is to avoid complications like this that the Legislature may have thought it fit to allow a decree made ex parte as against some of the defendants to be set aside in its entirety upon their application, if the requirements of Section 108 of the Code are satisfied.

7. Two cases were relied upon by the learned Vakil for the petitioners---Doorga Pershaud Ghose v. Greesh Chunder Bose (1864) 1 W. R. 222 and Brojonath Surmah v. Anund Moyee Debia Chowdhrain (1867) 7 W. R. 237 as lending support to his contention. They were cases under Act X of 1859, and Section 58 of that Act, which corresponded to Section 108 of the Code, contained this provision, that if the petitioner ' shall show good and sufficient cause for his previous non-appearance and shall satisfy the Collector that there has been a failure of justice, the Collector may, upon such terms and conditions as to costs or otherwise as he may think proper, revive the suit and alter or rescind the decree according to the justice of the case.'

8. That, I think, was different from the provision in the law now under consideration, which is imperative, and requires that the Court shall pass an order to set aside the decree upon such terms as to costs, etc., as it shall think fit, and shall appoint a day for proceeding with the suit. I, therefore, think that decisions under Act X of 1859 cannot be in point in cases coming under Section 108 of the Code, and the view I take receives some support from the decision of this Court in the case of Dookhee Khan v. Rajessuree Ranee (1871) 15 W. R. 371 in which it was held that it was competent to the Judge of the Small Cause Court, on hearing the objections by one of the several defendants, to set aside the decree as to all, 'if justice seems to require it; as, for instance, if the objection is one which is common to the case of all.'

9. Cases may arise in which a decree, though nominally one, really consists of several decrees against different parties, the relief granted against each being separately specified. In such cases the contention urged by the petitioner's Vakil may hold good. But here the decree is one and undivisable, and I think that the Court below was right in setting it aside in its entirety under Section 108 of the Code, notwithstanding that some of the defendants had entered appearance at the original hearing.


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