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Keshub Chandra Choudhury and anr. Vs. Joyfulnessa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal397
AppellantKeshub Chandra Choudhury and anr.
RespondentJoyfulnessa Bibi and ors.
Cases ReferredJadubansa Narain v. Hart Charan
Excerpt:
- .....were obtained in respect of two orders in two rent suits setting aside in their entirety two ex-parte decrees. it appears that in these suits there were in all fourteen defendants, five of whom were females. decrees were passed ex parte and subsequently there were sales, but the finding of fact is that the summons had not been legally served on the five female defendants who also had been kept out of the 'knowledge of the decrees for a considerable period after the decrees were passed. the learned munsiff, therefore, set aside in toto the two ex-parte decrees on the application of the five ladies. against this order these rules were obtained.2. a preliminary point is taken that, as a matter of fact, this is not a matter for the use by this court of section 115, civil p.c. because when.....
Judgment:

Duval, J.

1. These two Rules were obtained in respect of two orders in two rent suits setting aside in their entirety two ex-parte decrees. It appears that in these suits there were in all fourteen defendants, five of whom were females. Decrees were passed ex parte and subsequently there were sales, but the finding of fact is that the summons had not been legally served on the five female defendants who also had been kept out of the 'knowledge of the decrees for a considerable period after the decrees were passed. The learned Munsiff, therefore, set aside in toto the two ex-parte decrees on the application of the five ladies. Against this order these Rules were obtained.

2. A preliminary point is taken that, as a matter of fact, this is not a matter for the use by this Court of Section 115, Civil P.C. because when the suits are retried, the order setting aside the ex-parte decree will be then liable to be attacked in appeal, and in support of that proposition, the learned advocate for the opposite parties has referred me to certain decisions of other High Courts. I am, however, bound by the decisions of this Court, and the decisions of this Court are against the contention that an order setting aside an ex parte decree could be assailed in an appeal which might be brought against the final decree made after the ex-parte decree has been set aside. I would only refer to the case of Chintamoni Dassi v. Raghoonath Sahoo [1895] 22 Cal. 981. This disposes of the preliminary point.

3. Two grounds are taken before me on behalf of the petitioners. The first is that the whole decree should not have been set aside, but only the decree as affecting these five ladies and, secondly, that the learned Munsif wrongly put the onus on the petitioners in respect of the plea of limitation. As to the second point: I do not think, there is much substance in it. It appears clear from the findings of the learned Munsif that the ladies were kept out of the knowledge of the decree and. the proceedings against them also in execution only till within a few days of the present applications being made. As to the first point: the argument for the petitioners appears to me to have considerable weight. It is now settled that a rent decree can be obtained against some of the holders of a holding without every single holder being impleaded. I would refer to the recent Pull Bench case of Kailash Chandra Mitra v. Brojendra K. Chakravarti : AIR1925Cal1056 . Therefore, it would not have been illegal to have granted decrees is respect of these rents against the nine male defendants only. It is also not disputed that an ex-parte decree can be set aside as against some defendants and remain a perfectly good decree against the others: see the case of Jadubansa Narain v. Hart Charan : AIR1925Cal1056 It follows, therefore, that, even if the five lady applicants had never been made parties, there would have been perfectly good decrees for rent against the other nine defendants. It is urged, therefore, that the order of the learned Munsif in these two matters should be varied and the decrees set aside only in respect of the five ladies and not as against the male defendants. The learned advocate for, the ladies has argued that there is no reason why this Court should invoke its jurisdiction under Section 115, even though the learned Munsif has not acted strictly in accordance with law in setting aside the decrees in toto. I am inclined, however, in the interest of limiting litigation, as I have the power, as the learned Munsif has acted illegally, to set aside his order setting aside the decrees as against the nine male defendants, as I consider it would be in the interest of justice that I should do so.

4. I, therefore, make the rules absolute to this extent that the orders setting aside these decrees shall operate as against the five applicant ladies only and the decrees stand against the other defendants. As each party had been partially successful. 1 make no order as to costs.


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