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

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in116Ind.Cas.158
AppellantKeshab Chandra Choudhury and anr.
RespondentJoyfulnessa Bibi and ors.
Cases ReferredJadubansa Narain v. Mohunt Hari Charan Bharati
Excerpt:
civil procedure code (act v of 1908), section 115, order ix, rule 13 - order setting aside ex parte decree--revision--rent-decree partly ex parte and partly contested--application by ex parte defendants to set aside decree--re-opening of decree even against other defendants, legality of. - .....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 munsif, 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 of the code of civil.....
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 Munsif, 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 of the Code of Civil Procedure because when the suits are re-tried 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 Chintamony Dassi v. Raghoonath Sahoo 22 C. 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 Full Bench case of Kailash Chandra Mitra v. Brojendra Kumar Chakravarti 90 Ind. Cas. 211 : 29 C.W.N. 1000 : 42 C.L.J. 232; A.I.R. 1925 Cal. 1056 : 53 C. 197. Therefore, it would not have been illegal to have granted decrees in 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. Mohunt Hari Charan Bharati 6 C.L.J. 226. 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 has been partially successful, I make no order as to costs.


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