Baldeo Lall and Others vs Mt. Matisara Kuer and Others

Chatterji, J.—The facts which have given rise to this appeal are as follows: One Chuni Lal had three sons, Tilakdhari, defendant 1, Lalbehari, defendant 2, and Kali Lal, the deceased husband of the plaintiff. Defendants 3 to 5 are the maliks of 3 as. 4 pies patti in mauza Chari forming tauzi No. 1430 wherein the disputed land is situated. Defendants 6 and 7 are the sons of one Lala Rambaran Lal who was the zarpeshgidar of a portion of the share of defendant 3. The malik defendants along with the zarpeshgidars, defendants 6 and 7, brought a rent suit in respect of the land in suit against defendants 1 and 2 and obtained an ex parte decree on 13th March 1916.

Subsequently in execution case No. 11 of 1917 the disputed property was put up to sale and purchased in the name of the father of defendants 6 and 7. The plaintiff''s case is that the land in suit fell to the share of the plaintiff''s husband on a partition between the three brothers and was in his possession and after his death in that of the plaintiff on payment of rent to the maliks. She assails the decree in the rent suit as well as the sale held thereunder as fraudulent and collusive brought about at the instance of defendants 1 and 2 and further that they (namely, defendants 1 and 2) made the purchase in the farzi name of the father of defendants 6 and 7. She complains that she was dispossessed of the disputed land in 1922 on the strength of the Revisional survey entry. On these allegations the plaintiff claims for an adjudication that the decree and the sale in question are collusive, fraudulent and not binding on her, and that the entry in the revisional survey is wrong, and also for recovery of possession of the disputed land. There is a statement that the plaintiff would bring a separate suit for damages and mesne profits against such of the defendants as would be found to be in illegal possession of the land.

The malik, defendant 3, filed a written statement contesting the suit and; pleading that the plaintiff or her alleged husband had no concern with the disputed land and that the decree was obtained against the recorded tenant and this and the sale held in execution thereof are valid and operative. There was an averment that the defendant did not admit the plaintiff to be the widow of Kali Lai and further that Kali Lai had died during the lifetime of his father Chuni Lal.

Then defendants 1 and 2 entered into a compromise with the plaintiff admitting her claim. After that the plaintiff asked for expunging the name of defendant 3 from the category of defendants. The Court allowed that prayer without notice to defendant 3 and without hearing him and passed a decree on compromise against defendants 1 and 2 and ex parte against defendants 4 to 7.

After this, defendant 4 for self and as guardian of defendant 5 made an application under Order 9, Rule 13, Civil P.C. for setting aside the ex parte decree. The Court by its order No. 17, dated 15th November 1924, set aside the ex parte decree as against the said petitioners (namely, defendants 4 and 5). In passing that order the Court made the following observations:

Besides the present applicants the only defendant who contested this suit was one Rambahal Lal. The plaintiff cunningly expunged him and compromised the suit with other defendants and got ex parte decree against the present applicants. This clearly shows that the plaintiff is not proceeding bona fide. I accordingly hold that summonses were not served on the applicants and the ex parte decree will be set aside.

It will appear from the quotation made above that the Court had no notice of the fact that the ex parte decree had been passed also against two other persons, namely, defendants 6 and 7. Be that as it may, after the restoration of the suit plaintiff filed a petition stating that defendant 5 was a minor and praying that he might be represented by defendant 4 as his guardianadlitem. Notice was issued to the minor defendant and the proposed guardian and on the date fixed (22nd December 1924) the proposed guardian filed a petition expressing his consent to act as guardian-ad-litem of the minor defendant 5 and was appointed as such. Then summonses were ordered to be issued to defendants fixing 12th January 1925, for settlement of issues. Summonses, were issued not only against defendants 4 and 5, but also against defendants 6 and 7.

Before the date fixed for settlement of issues and on 6th January 1925, a written statement purporting to have been on behalf of defendants 4 and 5 (now described as defendants 3 and 4, because of the elimination of the original defendant 3) appears to have been filed admitting the plaintiff''s claim. On 12th January summons was specifically directed to be issued on defendants other than 3 and 4 fixing 2nd February 1925. On that date defendants 4 and 5 applied for time to file written statements. On the next date, namely, 11th February a written statement was filed by defendants 4 and 5 (now styled defendants 3 and 4); and another written statement was put in by defendants 6 and 7. The suit was adjourned to 13th February. In the meantime, namely, on 12th February the original defendant 3 Rarnbahal Lai filed a petition to be added as party. On 13th February defendant 4 (now styled as defendant 3) filed a petition supported by an affidavit that the written statement purporting to be filed by him on 6th January 1925 had not been filed by him. After an enquiry into the matter the Court held that the first written statement had been filed by Baldeo Lal, defendant 4 ''(at present defendant 3). The Court took this view on two grounds, namely, (1) that the vakalatnama was handed over by Baldeo Lal to Moulvl Abid Hussain, pleader, who was unable to identify him at the time of his examination but says:

I was satisfied about the identity of this man before accepting vakalatnama from him and filing first written statement.

and (2) there is no explanation on behalf of Baldeo Lai why he made no pairbi in the suit for 2� months before 11th February 1925 when the new written statement was filed. The Court rejected the written statement filed by defendants 6 and 7 on the ground that the ex parte decree had been set aside on the application of Baldeo Lal and Sarjug Lal (defendants 4 and 5) as against them, and they have no locus standi to file a written statement. The petition of Rambahal Lal (original defendant 3) for being added as defendant was rejected on the ground as alleged

that there is no provision in the law for doing so,

After all this the suit was decreed on confession against Baldeo Lal and Sarjug Lal the original defendants 4 and 5. The ex parte decree continued as against defendants 6 and 7. An appeal was preferred to the District Judge by these four defendants, namely, original defendants 4 to 7. The learned District Judge held that the question as to the decree not having been set aside as against defendants 6 and 7 did not arise inasmuch as the Munsif dealing with the application under Order 9, Rule 13, had made an order setting aside the decree as against defendants 4 and 5 only and further that the Munsif was right in rejecting the second written statement filed on behalf of defendants 4 and 5 and in proceeding with the case on the basis of the first written statement.

In appeal it is urged that it was competent in appeal against the original decree to question the propriety of the order under Order 9, Rule 13, restoring the suit as against defendants 4 and 5 only and that in the circumstances of the present case the entire decree should have been set aside. In support of this contention reference is made to the terms of Section 105, Civil P.C., and to the case of Nand Ram v. Bhupnl Singh [1912] 34 All. 592, Gopala Chetti v. Subbier [1903] 26 Mad. 604 and M.S. Mahammed v. Collector of Toungoo AIR 1927 Ran. 150. On the other hand reference may be made to the cases of Chintamani Dasi v. Ragkunath Sahu [1895] 22 Cal. 981 and Krishna v. Mahesh 9 C.W.N. 584.

Section 105 lays down that 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 the ground of objection in the memorandum of appeal. It is settled law that an error, defect or irregularity in the order may be set forth as a ground even where the interlocutory order is one from which no appeal lies. The error, defect or irregularity referred to in this section must be either in law or procedure and not in matters of fact. There is, however, a conflict of decisions round the above " affecting the decision of the case" in the above section. It has been laid down in a class of cases that the words " affecting the decision of the case " mean affecting the decision of the case with reference to the merits of it. Chintamani v. Raghunath [1895] 22 Cal. 981 ; Krishna v. Mahesh 9 C.W.N. 584 ; Tamdduq Hussain v. Hayatunnissa [1903] 25 All. 280 Mohamed Nuru Amin and Others Vs. Monohar Saran Deb Mohanta and Others, ; Nishi Kanta Sarkar Vs. Umar Lal Sarkar, . On the other hand in Gopala Chetti v. Subbier [1903] 26 Mad. 604, the Madras High Court allowed an objection as to the irregularity of an order passed u/s 108, Civil P.C. 1882, in the appeal against the final decree and held that the decree should not have been set aside as against one of the defendants. In Nand Ram v. Bhupal [1912] 34 All. 592 the Allahabad High Court takes the view that an order under Order 9, Rule 13, setting aside an ex parte decree can be attacked in appeal from the final decree. In the case of M.S. Mohammad v. Collector of Toungoo AIR 1927 Ran. 150 the view is taken that the propriety of an order setting aside an ex parte decree can be questioned in an appeal against the subsequent decree in the same suit and there is no need to read into Section 105 the additional words "on the merits."

I have carefully considered the conflicting rulings and I am of opinion that Section 105 can have no operation to a case where the ex parte decree is set aside and the point is raised that the decree should not have been set aside at all, because an order so passed merely ensures a hearing upon the merits and cannot be considered to be an order affecting the decision of the case. But where a case cannot be properly decided, because the decree has been set aside only against some of the defendants but should have been set aside: also against others, the order must be considered to be an order affecting the decision of the case and in a casa like that, Section 105 can clearly be invoked. The Calcutta cases dealing either with Section 108 or Order 9, Rule 13, dealt with applications which had been allowed in their entirety and it was held that the propriety of the order could not be reopened. If the view which I have indicated above be taken as the proper view then the conflicting views will be reconcilable.

Bearing this principle in mind let us approach the facts and circumstances of the present case. Now the suit was practically for the setting aside of the decree obtained not merely by the persons (defendants & and 5) who applied for re-hearing but also by the father of defendants 6 and 7. The sale sought to be set aside was held in execution of the decree standing in favour of the father of defendants 6 and 7 as well, and what is more their father was the certified auction purchaser. It is, therefore, preeminently a case in which the decree should have been set aside not merely against the applicants but also against defendants 6 and 7. The original suit cannot in the circumstances of the case be properly adjudicated in the absence of these necessary parties. In fact it is to cover cases like this, that the proviso to Order 9, Rule 13 of the present Civil P.C., has been enacted. Rule 13 lays down that the decree should be set aside as against the defendant applying for an order to set it aside and then provides that.

where the decree is of such a nature that it cannot be set aside as against such defendants only it may be sat aside as against all or any of the defendants also.

It is urged by the learned advocate for the respondent that when defendants 6 and 7 did not appear to set aside the decree and no materials were evidently placed before the Court that the decree should be set aside as against them as well these defendants are precluded from contesting the validity of the order. Now, the proviso itself makes it clear that even if a particular defendant does not apply for the decree to be set aside it is open to the Court to set it aside against him, if the circumstances of the case so demand. It is the bounden duty of the Court to look to the facts of each particular case and consider whether the decree should be set aside against the petitioner only or against other defendants as well. The Court cannot shirk this obvious duty and it cannot be maintained that because defendants 6 and 7 did not appear and submit proper materials before the Court, the Court was justified in passing an improper or wrong order. Keaing that the decree sought to be sot aside was passed in favour of the father of defendants 6 and 7 and that the sale by virtue of which the plaintiff is said to have lost her possession was in execution of that decree, and remembering also that the father of defendants 6 and 7 was the certified purchaser and represented along with defendants 4 and 5, the joint body of landlords, the ex parte decree should not have been set aside only against some of the decree holders who had made the application for setting it aside. The error, defect or irregularity in this particular order affects the decision of the case, because the suit cannot be effectively decided in the absence of defendants 6 and 7 who along with others represented the joint body of landlords who had obtained a decree and caused the sale thereunder. Consequently I am satisfied that this is a matter which falls within the purview of Section 105. I am therefore, unable to agree with the view taken by the learned District Judge that the propriety of the order under Order 9, Rule 13, cannot be questioned in the present case. I find that the propriety of order can be questioned and that the decree should have been set aside against defendants 6 and 7 as well. (His Lordship then discussed the question whether defendants 4 and 5 should have been pinned to their first written statement and remanded the case for rehearing after the acceptance of the written statement filed by the original defendants 4 to 7.)

Adami, J.

I agree.