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Nalinikanta Mukherji and ors. Vs. Hari Nikari and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in86Ind.Cas.779
AppellantNalinikanta Mukherji and ors.
RespondentHari Nikari and anr.
Cases ReferredKhagendra Nath Mahata v. Pran Nath Roy
Excerpt:
civil procedure code (act v of 1908), order ix, rule 13 - ex parte decree, application to set aside, dismissal of--suit to set aside decree, whether maintainable--plea of fraudulent nature of claim in previous suit whether can be taken--service of summonses--finding in proceedings to set aside ex parte decree, whether res judicata. - .....of the respondent's failure in these proceedings, they on the 15th january, 1920, instituted the present suit to set aside the ex parte decree oh the grounds that the claim was a false one and the decree was obtained by perjured evidence. we have the plaint before us and it also appears that the respondents contended in the suit that they had never been served with summonses and that a false return of service was made by the process-server at the instance of the present appellants. the case came on for hearing before the munsif, who decided, as i have already stated, on the 29th november 1920, adversely to the present respondents. he states with regards to the issues nos. 5 and 6. which were the issues with regard to service and other matters that it was not present before him that any.....
Judgment:

William Ewart Greaves, J.

1. This is an appeal by the defendants in a suit against a decision of the District Judge of Jessore, dated the 4th April, 1922, reversing a decision of the Munsif of the First Court at Jhenidah. It will be convenient first of all to state the facts. In the year 1916, the present appellants instituted in the Court of Small Causes a suit against the respondents on a hand-note. A month after the institution of the suit, namely, on the 20th April, 1916, the present appellants obtained an ex parte decree against the respondents for a sum of Rs. 59-8-0. The case of the respondents is that they knew nothing of that decree until the 7th of June 1919, when certain moveable articles of theirs were seized in execution: of the decree. Thereupon the present respondents applied under Order IX, Rule 13, C.P.C., to set aside the ex parte decree contending that summonses had been suppressed. These proceedings were contested but the present respondents failed in their application, and it was thus held that summonses were duly served on the present respondents. As a result of the respondent's failure in these proceedings, they on the 15th January, 1920, instituted the present suit to set aside the ex parte decree oh the grounds that the claim was a false one and the decree was obtained by perjured evidence. We have the plaint before us and it also appears that the respondents contended in the suit that they had never been served with summonses and that a false return of service was made by the process-server at the instance of the present appellants. The case came on for hearing before the Munsif, who decided, as I have already stated, on the 29th November 1920, adversely to the present respondents. He states with regards to the issues Nos. 5 and 6. which were the issues with regard to service and other matters that it was not present before him that any fraud had been practised on the Court. The learned District Judge has reversed the decision of the Munsif and hence this appeal.

2. The reversal of the Munsif's decision was arrived at, so far as I can see on two grounds, firstly, the summonses were not served and the learned District Judge finds that the plaintiffs knew nothing about the ex parte case, and, secondly, on the ground that the claim was fraudulent, the learned District Judge finding that the hatchitta upon which the original suit of the appellants was based was made out in the absence of the respondents and that it was an untrue document. So far as the second ground of the decision is concerned, there has been some conflict of authorities in this Court; but we think the balance of the authority is that it is not open to raise pleas of this nature, if the suit has been decreed after contest or if the suit has been decreed ex parte and it is established that summonses were served on the defendants. Numerous authorities have been cited before us, but it is not, I think, necessary to refer to them. As I have already stated the balance of authority is in favour of the contention of the appellants before us that under the circumstances which I have stated no such suit lies. This is in accordance with a decision in the case of Mohomed Golab v. Mahomed Sulliman 21 C. 612 : 10 Ind. Dec. (N.S.) 1038 As I have already stated that decision has not been uniformly followed. But the balance of authority is in favour of the correctness of that decision. We therefore, come to the first ground of the decision of the District Judge, namely, that there was no service of summonses upon the present respondents. In this appeal it is urged before us that that contention is not open to the respondents having regard to the decision in the proceedings under Order IX, Rule 13 to which I have-already referred and that is the main question which arises for our consideration, It is urged on behalf of the appellants that having regard to that decision and upon the authorities which have been cited to us and upon the general principles, that decision amounts to a res judicata with regard to this question, and that it is not open in the present suit to the respondents to again agitate that question. It is further contended that before the Munsif this point in fact was abandoned. So far as the question of abandonment is concerned, we do not think that this argument is well-founded, having regard to the plea that was made in para. 1 of the plaint and having regard to the evidence that was given in the case and the finding of the lower Appellate Court that the plaintiffs, that is to say, the present respondents, knew nothing about the ex parte case.

3. The other point is, however, a somewhat difficult one. On behalf of the respondents, we were referred to the case of Khagendra Nath Mahata v. Pran Nath Roy 29 I.A. 99 : 29 C. 395 : 6 C.W.N. 473 : 4 Bom. L R. 363 : 8 Sar. P.C.J. 266 (P.C.) where their Lordships of the Judicial Committee decided that the rejection of an application under Sections 108 and 311 of the old C.P.C. was not a bar to the re-agitation in a subsequent suit of questions, some of which fell to be decided under the provisions of Sections 108 and 311. The appellants before us contend that that authority has no application to the present case as there were clearly matters in that suit which could not have been raised in the application under the two sections of the C.P.C. to which I have referred, and that in the present case every matter with regard to service of summons could have been and was raised in the proceedings under Order IX, Rule 13 of the C.P.C.

4. I think myself that the case of the Judicial Committee to which I have just referred, stands on somewhat peculiar grounds but we think that that case has some bearing on the present appeal, because there were matters in the subsequent suit out of which this appeal arises which could not have been raised on the application under Order IX, Rule 13 as that was an application to the Munsif, the original suit having been brought in the Court of Small Causes, as I have already stated.

5. For these reasons we think that the decision under Order IX, Rule 13, C.P.C. does not operate as a res judicata in the present appeal and accordingly there is a finding of fact of the lower Appellate Court that summonses were never served on the present respondents. This being so, we think that the decision of the District Judge is correct, although we do not agree with the reasons for that decision which are contained in his judgment. The present appeal accordingly fails and must be dismissed with costs.

Mukerji, J.

6. I agree.


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