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Judgment
Abdur Rahim, J.—It is not necessary in dealing with the Second Appeal to state the history of this litigation as it has been set out in the
previous judgment of the learned Judge against whose decree this appeal has been preferred. Two questions have been argued before us. The first
which relates to the merits is this : whether the finding of the Lower Court that the defendants 2 and 3, the appellants before us, had any notice as
to Narasayya''s title to the property. It appears that the property stood in the name of the plaintiff and Narasayya. The case of the plaintiff is that
Narasayya had no title inasmuch as he had not paid his share of the consideration money which he was to have paid. We must take it as found in a
previous judgment in the course of this litigation that Narasayya had in fact no title although his name stood in the title deeds. The High Court in its
previous order of remand had remitted two issues for trial. One was ""Had the defendants 2 and 3 notice of plaintiff''s claim to the entire suit
property prior to the ''ransfer in their favour?"" (2) Did they act in good faith and take reasonable care to ascertain whether defendants had power
to make the transfer within the meaning of Section 41 of the Transfer of Property Act?
The first question has been answered by both the courts in the negative and there can be no doubt rightly so.
The answer to the second question is what we are now asked to consider in this second appeal. The learned District Judge says that although
the defendants 2 and 3 had no express notice of the plaintiff''s claim to the entire property, yet the fact that for several years before the transfer the
plaintiff claimed and received rent for the entire property from the defendants themselves was sufficient to call upon the defendants to enquire as to
how, the plaintiff claimed the entire rent. The learned Judge states his conclusion in these words; ""The defendants 2 and 3 made no enquiries at all
and there seems to be considerable ground for the theory that defendants 2 and 3 wanted to annoy plaintiff in connection with the dispute about a
house."" Thus the appellants failed to make any bona fide enquiry into the matter and in second Appeal it is difficult to hold that the Lower Court
had not sufficient materials on which to come to this conclusion. In fact no attempt has been made by the learned pleader for the appellant to satisfy
us that there was really no evidence to justify the conclusion.
The next point for consideration is whether the District Judge is right in holding that the order rejecting the application made under Order 9, Rule
13 (Section 108 of the old code) was final and that it was open to him to deal with that question in the appeal against the decree of the District
Munsif. So far as I can see, there is no direct decision on the question. Our attention has been drawn to the decision in Perumbm Nayar v.
Subramanian Pattat 10 M.L.J. 61. But there the learned Judges expressly refused to decide the question whether where an application to set aside
an ex parte decree had been made under the special procedure provided in this connection and refused and no appeal was preferred against the
order of refusal it was still open to the defendant in an appeal against the decree to raise the same question and have the decree set aside on the
ground that the defendant was prevented by sufficient cause from appearing and properly conducting the defence. It was also suggested that the
Full Bench decision in Krishna Aiyar v. Kuppan Aiyangar supports the appellants'' contention. But where no application had been made to set
aside the ex parte decree u/s 108 of the old CPC which governed that case, and that decision therefore cannot be taken as a ruling on the point in
dispute before us. Krishna Aiyar v. Kuppan Aiyangar ILR (1906) Mad. 54 proceeds on the bash that in a case where no application under the
special procedure provided by the Code for setting aside the ex parte decree has been made, it is open to the detendant in appealing aganst the
decree to take the objection in the appeal. But that does not cover a case where an application was made and rejected and the order rejecting the
application was not contested by way of appeal from that order. Assuming that it is open to a defendant in the appeal against the ex parte decree
to object to the decree on the ground that he had not sufficient opportunity to adduce evidence in a case, where he did not choose to avail himself
of the special procedure it does not by any means follow that where he did actually avail himself of the special procedure and failed, still it would
be open to him to have the same question reagitated by appealing against the decree. Mr. T.V. Venkatarama Aiyar the learned Vakil for the
appellants argued that the language of Section 105, CPC is wide enough to cover a case like this, It says : "" save as otherwise expressly provided,
no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any
error, defect or irregularity in any order, affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.
That prima facie refers to an order from which no appeal is provided. But it is argued that the corresponding section of the old Code has been
modified in order to extend the provision to cases of orders other than those from which no appeal is provided. In Section 591 of the old Code the
words were ""where a decree is appealed from, any error, defect or irregularity in any such order affecting the decision of the case. The word ''
such '' dees not find a place in Section 105 of the new Code. I am however inclined to think that this should not make any difference in the
construction of Section 105 so far as this point is concerned. The word "" such"" might have been intended as pointed out in Woodroffe and Ameer
Ali''s Commentary on the CPC to limit the application of the section to orders passed under the Civil Procedure Code. In any case the language of
Section 105 does not seem to me to give the defendants the right to reopen the question whether he had sufficient opportunity given to him to
adduce his evidence in cases where he has availed himself of the special procedure provided by the Code and his application to set aside the ex
parte decree has been finally rejected. To hold otherwise would be opening the door to speculative litigation. Much emphasis was also laid by Mr.
Venkatarama Aiyar on the observation of the Privy Council in Maharajah Moheshur Singh v. The Bengal Government (1859) 7 M.I.A. 283 which
has been quoted in a recent decision of this Court in Kondapa Rajan and Others Vs. Dwarakonda Suryanarayna and Others, . That observation
was not made with reference to any such express provision of the CPC as we have now. It only laid down that the general Law does not
contemplate that wherever an interlocutory order is passed unfavourable against a party that party must appeal against it, and if he does not do so,
he will be precluded from impeaching it in the appeal against the decree. That however is very different from what we are asked to hold in the
present case. It may well be doubted whether an order rejecting the application made under Order 9, Rule 13 comes within the sense of an
ordinary interlocutory order, such as was under consideration before the Privy Council. I therefore hold that this contention also fails.
In the result the appeal must be dismissed with costs.
Oldfield, J.
I entirely agree with the judgment just now delivered by my learned brother, and I supplement it on the second point dealt with, only because I
recently had occasion in another case to refer to two of the cases relied on and my reference to them now appears liable to misconstruction. In
Neelaveni v. Narayana Reddi ILR (1919) Mad. 94 . I said that Caussanel v. Soures ILR (1899) Mad. 260 had been overruled in Krishna Aiyar
v. Kuppan Aiyangar ILR (1906) Mad. 54 On a closer consideration of the cases that seems to me to be mistaken. In fact Gaussanel v. Soures
ILR (1899) Mad. 260 is overruled by Krishna Aiyar v. Kuppan Aiyangar ILR (1906) Mad. 54 on the point only a point with which we are not
concerned in the present appeal and with which the Full Bench was not concerned. I will only say that the misdescnption of the case in my
judgment in Neelaveni v. Narayana Reddi ILR (1919) Mad. 94 did not affect the opinion expressed therein.
The point which Krishna Aiyar v. Kuppan Aiyangar ILR (1906) Mad. 54 really decides relates to the power of the Court to order a remand.
No case has been cited before us, in which the question now under discussion whether a party against whom a decree has been passed ex parte
can proceed in succession under Order 9, Rule 13 as well as by taking objection to the order placing him ex parte in his appeal against the
substantive decree has been dealt with. On principle it would appear that he could only do so at the expense of the rules as to res judicata ; and
there can be no reason why the adjudication on his application under Order 9, Rule 13, if there were one, should not be conclusive against him for
the purpose of any subsequent appeal. In the present case it is suggestsd that the facts that his application under Order 9 Rule 13 was not carried
further than the District Munsif''s Court and that he acquiesced in the District Munsif''s unfavourable order would make a difference to his right to
appeal against the decree on this ground. The answer to this is that the District Munsif''s order, not having been appealed against, has become final.
It seems to me that it would be a matter (or great regret if a party could pursue both of two alternative remedies in succession and that the
recognition of a right to do so would be a unique incident in our procedure, I am accordingly relieved to find that such a right has not been
recognized by authority. I agree with my learned brother in the order proposed by him.