Gadi Neelaveni vs Marappareddigari Narayana Reddi

Abdur Rahim, C.J.—The question referred to us in this case which is in these words: ""Has a Court power, apart from the provisions of Rule

13, Order IX, C.P.C. to set aside an exparte decree passed by itself? "" has been fully discussed before us and I shall shortly express my opinion.

Upon an application made to him under Order IX, Rule 13, Civil Procedure Code, the District Munsif, while holding that it was not proved that the

summons was not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing,

set aside the ex parte decree passed against the respondent observing ""Looking, however, to the heaviness of the amount involved and the

relationship subsisting between the parties and looking at the unwillingness of the present surety to continue his obligation, I shall allow the petition

as a special case and give him a chance of contest."" I should say that, even if the Court had inherent jurisdistion to set aside an ex parte decree on

grounds other than those mentioned in Rule 13, it could have no jurisdiction to do so arbitrarily and on fanciful grounds, such as those mentioned in

the District Munsif''s judgment.Section 151 says, "" Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the

Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."" An order, such as in this

case, could not, by any stretch of language, be described as being necessary for the ends of justice or to prevent abuse of the process of the

Court. This section, as is well known, was inserted in the Code of 1908 in accordance with a number of decisions in which the inherent power of

the Court ex debito justitiae was recognised.

Order IX, Rule 13, provides a special summary remedy for a particular class of cases mentioned therein, i. e. those in which summons was not

duly served on the defendant or in which he was prevented for any sufficient cause from appearing when the suit was called on for hearing; and the

jurisdiction is limited to the Court by which the decree was passed. To hold that such a remedy can be extended to cases other than those

mentioned would be going against the clear intention of the legislature and cannot be brought within the scope of any inherent power recognised by

Section 151 or the rulings on the subject.

The opposite view was propounded, so far as it appears, for the first time by Bhasbyam Aiyangar, J., in Somayya v. Subbamma (1903) ILR 26

Mad. 599 approved by Sundara Aiyar, J., in Muruga Chetty and Others Vs. Rajasami and Others, and also to some extent supported by what

appears to be a casual dictum of White, C.J., in Gopala Row v. Maria Susaya Pillai ILR (1906) Mad. 274. On the other hand a Division Bench of

this Court in Venhatarama Aiyar v. Nataraja Aiyar 4 consisting of Sankaran Nair, J., and myself dissented from the ruling of Bhashyam Aiyangar,

J. and there is really nothing useful to be added to the reasons given in Sankaran Nair, J''s judgment in which I concurred.

So far as there was any attempt made in somayya v. Subbamma ILR (1903) Mad. 599 to construe the provision of the Civil Procedure Code,

it seems to me that to read the first part of the rule that the defendant against whom an ex parte decree is passed may apply to the Court by which

the decree was passed for an order to set it aside as conferring a jurisdiction to pass such an order in cases other than those mentioned in the rest

of the section is apparently fallacious and unsound. The main argument of Bhashyam Aiyangar, J. is based upon grounds of hardship in certain class

of cases mentioned in the judgment and which in his opinion would not be covered by Order IX, Rule 13. It has been pointed out in Venkatarama

Aiyar v. Nataraja Aiyar (1912) 24 M.L.J. 235 that in all those cases remedy could be obtained either by appeal or by review.

The question of inherent jurisdiction of the Court was elaborately discussed in Hukuni Chand Boid v. Kamalanand Singh ILR (1905) Cal. 927 .

There Woodroffe, J., has collected a number of cases in which the Court''s inherent power has been exercised. He says : "" It has thus been held

that, although the Code contains no express provision on the matters hereinafter mentioned the Court has an inherent power ex debito justified to

consolidate; postpone pending the decision of a selected action; and to advance the hearing of suits; to stay on the ground of convenience cross

suits; to ascertain whether the proper parties are before it; to enquire whether a plaintiff is entitled to sue as an adult; to entertain the application of

a third person to be made a party; to add (Section 32 not being exhaustive) a party; to allow a defence in forma pauperis; to decide one question

and to reserve another for investigation, the Privy Council pointing out that it did not require any provision of the Code to authorise a Judge to do

what in this matter was justice and for the advantage of the parties; to remand a suit in a case to which neither Section 562 nor Section 566

applies; to stay the drawing up of the Court''s own orders or to suspend (heir operation, if the necessities of justice so require; to stay, apart from

the question whether the case falls within Section 545, the carrying out of a preliminary order pending appeal; to stay proceedings in a lower Court

pending appeal and to appoint a temporary guardian of a minor upon such stay; to apply the principles of res judicata to cases not falling within

Sections 13 and 14 of the Code and so forth."" See page 932. There is no instance so far as I am aware, of an ex parte decree being set aside

upon an application made for that purpose in cases other than those coming under Rule 13 of Order IX. I do not say that that is a conclusive

argument against the existence of such a power but it is certainly significant to show that this does not stand on the same footing as the cases

mentioned. Most of the cases where the Court exercised its inherent power related to orders of an incidental or ancillary character. I do not,

however, wish to suggest that the inherent power of the Court mentioned in Section 151 is to be limited to cases in which it can be shown to have

been already exercised, for that would be unduly limiting the scope ofSection151. But I have no hesitation in holding that there is no inherent power

in a Court to set aside an ex parte decree by summary procedure but that the power of the Court in such connection is limited to the circumstances

mentioned in Order IX, Rule 13. I am therefore of opinion that the ruling in Somayya v. Subbamma ILR (1903) Mad. 599 is wrong-as held in

Venkatarama Aiyar v. Nataraja Aiyar (1912) 24 M.L.J. 235 and the answer to the question referred to the Full Bench must be returned in the

negative.

Oldfield, J.

That our Courts possess inherent power is recognized in Section 151 Civil Procedure Code. But the exercise of the power in the particular

form, in which it is invoked, must be justified in each case in the manner authorized by authority. To justify it directly by reference to a previous

course of actual instances of its exercise with or without the endorsement of appellate tribunals will seldom be possible, when it is disputed; and

generally the legitimacy of its exercise must be tested with reference to the principles, which authority has prescribed. Those principles have been

laid down in judgments, which have so far met with no criticism and which I respectfully follow, by Woodroffe and Mookerjee, JJ., in Hukum

Chand Boid v. Kamalanand Singh ILR (1905) Cal. 927 and Nanda Kishore v. Ram Golam Sahu ILR (1912) Cal. 955 as being that the inherent

power shall be exercised, not capriciously, or arbitrarily but ex debito justitiae on sound general principles and not in conflict with the intentions of

the legislature. I may refer also at this point to my judgment in Muthiah Chettiar and Another Vs. Bava Sahib and Others, .

To apply this to the present reference, I look in vain for any mention of general principle in the authorities relied on by respondent; and

necessarily so, when the whole argument in them is directed towards supporting the exercise of the Court''s power by reference to the special

hardship of the circumstances in the particular case before it. In one of the three cases relied on by respondent, in which the matter was considered

fully, Lalta Prasad v. Ram Karan ILR (1912) All.426 the Court in exercising its inherent power to pass orders necessary for the ends of justice,

attempted no further definition of any general principle as covering its action. In the others, Somayya v. Subbamma ILR (1903) Mad. 599 and

Adyapadi Ramanna Udpa and Others Vs. Krishna Udpa and Others, the hardship to the party and the merits of the case he was debarred from

advancing, were statedly, the only tests applied.

The second condition above referred to for the exercise of the inherent power, the absence of conflict between such exercise and the statute

law, was no doubt considered at length in Somayya v. Subbamma ILR (1903) Mad. 599 the conclusion being against the importation into Sections

103 and 108 of the Code then in force, corresponding with the present Order IX Rules 8 and 13, of negative words to the effect that the Court

shall not set aside a decree passed ex parte except in cases, in which the party or his vakil was prevented by sufficient cause from appearing. The

principle relied on is that, although statutory enactments, expressed in affirmative language, may sometimes be construed as having a negative

implication, such implication, must be a necessary and reasonable one. But as regards necessity it must be remembered that "" the essence of a

Code is to be exhaustive on the matters in respect of which it declares the law and on any matter specifically dealt with by it the law must be

ascertained by interpretation of the language used by the Legislature "" per Woodroffe, J. in Hukumchand v. Kamalanand Singh ILR (1905) C.

It is in my opinion impossible to presume that the rules under consideration contain an imperfect statement of the law on the very definite

topic, with which they deal, the provision of a summary procedure for the re-opening of ex parte proceedings.

And in fact, with all respect for the opinion of the learned Judges responsible for the decisions of this Court last referred to, there is nothing

unreasonable or inconvenient in this conclusion. Bhashyam Aiyangar, J. attached weight to the absence of any means of displacing an unjust ex

parte decision, if the inherent power could not be utilised for the purpose. But I think that he over-estimated the frequency, with which review

proceedings would be barred by Order XLVII, Rule 2; he certainly overlooked the possibility of a suit by the aggrieved party, when his absence

was due to the fraud of his opponent. Vide Khagendra Nath Mahato v. Pran Nath Roy ILR (1902) Cal. 395 and he must have been misled by the

decisions in Gilkinson v. Subramania Ayyar ILR (1898) Mad. 221 and Caussanel v. Soures ILR (1899) Mad. 260 which were afterwards

overruled by Krishna Aiyar v. Kuppan Ayyangar ILR (1906) Mad 54 into making the erroneous statement that the circumstances in which the ex

parte decree was obtained could not be considered in an appeal against it. As regards hardship, resort to the Court''s inherent power is

unnecessary, when, as it seems to me, the wording of Rules 9 and 13 is wide enough to cover all ordinary cases of default, including those

instanced by Bashyam Aiyangar, J., in which the circumstances of a failure to appear are in question; and it may be suggested that in them the

matters referred to by him, the merits of the defaulter''s case (if indeed they can safely be assumed at that stage in the proceedings) and the grave

consequences of an ex parte disposal can in fact be considered in order to form an estimate of the honesty of the allegations as to the existence of

sufficient cause. But in cases, in which the existence of a sufficient cause for the default is not alleged or is disproved and those matters alone are in

question, I do not see how they can justify interference, if uniformity and certainty are to remain the foundations of our procedure.

Taking this view, I concur in the opinion proposed in the judgment just delivered.

Seshagiri Aiyar, J.

The very full discussion which this case has received has made it clear to me that we must overrule Somayya v. Subbamma ILR (1903) Mad

599 and Muruga Chetty and Others Vs. Rajasami and Others, . In both these decisions the reasons given for holding that there must be a power

outside Order IX, Rule 13 ex debito justitiae, are not convincing. For a defendant against whom a decree ex parte has been passed the following

remedies are open:--(1) He can bring a suit to set aside the decree if there has been any fraud in the obtaining of it see Radha Rama Shaha v. Pran

Nath Roy ILR (1901) Cal. 475 and Khangendra Nath Mahato v. Pran Nath Roy ILR (1902) Cal. 395. (2) He can prefer an appeal against the

decree itself; there can be no doubt that the powers of the Appellate Court are large enough to enable it to set aside the ex parte decree if there

has been a miscarriage of justice. The Appellate Court is not confined to the grounds mentioned in Order IX, Rule 13 in dealing with the matter (3)

The aggrieved party can file an application for review; and the grounds for such an application would be wider than those covered by Rule 13(4)

He can also file an application as provided by Rule 13 to set aside the ex parte decree. The second clause ""or when he was prevented by any

sufficient cause from appearing when the suit was called on for hearing,"" is comprehensive enough to cover most cases of default of appearance. A

suggestion was made that the default of a guardian of a minor defendant will not be covered by this clause. There is no reason for limiting the

language of the clause in that way. Further there is the authority of Keshopreshad v. Hirday Narain (1876) 6 C.L.R. 69 against this suggestion.

Analysing what has been said by the two learned Juges in Somayya v. Subbamma ILR (1908) Mad. 599 and Muruga Chetty and Others Vs.

Rajasami and Others, it seems to me that nothing that they suggest as a possible grievance will not be covered by any of the four classes of

remedies mentioned by me. I am therefore of opinion that there is no reason for invoking the inherent power of the Court in respect of this matter.

On the question of a Court possessing such a power I have great doubts. It was held by Lord Macnaghten in Rangoon Botatoung Company

Limited v The Collector, Rangoon ILR (1912) Cal 21 that a right of appeal must be given by the statute, and should not be inferred from the

inherent power of an Appellate Court. In this Court and in other High Courts it has been held that a right of review is not inherent in the Court but

must be given by the statute. A right to set aside an ex parte decree belongs to the same category as an appeal or a review. Because in either case

the effect of entertaining the proceeding is to vacate a decree which has been obtained by one of the parties to the suit. To interfere with such a

substantial right, it is not enough to invoke the inherent power of a Court. It was argued that as it has been held in a case to which I was a party,

following Ghuznavi v. The Allahabad Bank Limited ILR (1917) C. 929 that there is an inherent power of remand, it must be logically held that

there is an inherent power to set aside ex parte decrees. I do not think that the two positions are pan materia. A right of remand is implied in the

right to hear the appeal. An Appellate Court which has got jurisdiction to reverse the judgment of the lower Court must have power to set it aside

and to direct a new trial. It is because of the idea that this power of remand is implied in the right of appeal that the legislature in the Act of 1882 by

Section 564 put restrictions upon that inherent power. By the Act of 1908 that restriction was removed. Therefore the possession of an inherent

power to remand does not argue that there is a power to set aside an ex parte decree ''on grounds other than those mentioned in Order 9 Rule 13.

Moreover I am clear that Section 151 must be construed not as empowering a Court to exercise powers which it never possessed, but as

preserving to it those powers which it has been in the habit of exercising and which by an oversight or by failure to specify have not been

particularised in the statute. Section 151 has been introduced for the simple reason that no Code can exhaustively deal with the procedure for

exercising every power which a Court of Justice is competent to exercise: and the language of the section shows that it should be availed of only

where a power which has been exercised, has not been provided for in the Code. As was pointed out by the Judicial Committee in Gokul Mandar

v. Pudmanund Singh ILR (1902) Cal. 707 the essence of a Code is to be exhaustive upon the matters for which it provides. This language was

employed no doubt with reference to Section 13 of the Code of Civil Procedure. It is equally applicable to Order IX, Rule 13. The legislature has

provided a mode by which ex parte decrees can be set aside. As I pointed out already there is no necessity for invoking the principle of the

remedy ex debito justitiae, because in all conceivable cases excepting a case like the present in which the Lower Court has made no attempt to

conform itself to any rule or precedent, the party aggrieved can obtain justice by resorting to the proper procedure. As regards cases in the other

High Courts, I do not propose to deal with them at any length. In Tyeb Mahomed v. Allibhai ILR (1906) Bom 45 to which Jenkins, C.J., was a

party it was held that a Small Cause Court had inherent power in cases of eviction to set aside ex parte decrees. I do not think that decision covers

the present case. On the other hand in Manilal Dhunji v. Gulam Husein Vazeer ILR (1888) Bom. 12 and in Esmail Ebrahim Vs. Haji Jan

Mahomed, a different view was taken. Fakhruddin v. Ghafurudin (1900) I.L.E. 28 All. 99 was a case of an appeal and not of an application. In

Lalta Prasad v. Ram Karan ILR (1912) All 426 one would have thought that the application could be sustained on the grounds mentioned in Rule

Bibi Tasliman v. Harihar Mahato ILR (1904) Cal. 253 is another case in which it was not necessary to have appealed to the inherent power of

the Court. But none of them are cases in which the question of setting aside an ex parte decree directly arose. In Hukum Chand Bold v.

Kamalanand Singh ILR (1905) Cal. 927 the learned Judges point out that there was by the practice of the Court an inherent power which should

not be regarded as having been taken away by the Code of Civil Procedure. That is a typical instance of the application of Section 151 of the

Code. Speaking for myself, I am zealous of preserving the inherent power of the Court to render justice between party and party. But I am clear

that where there is no proof that the power has been exercised by Courts, and where the Legislature has given that power with limitations, Courts

are not at liberty to disregard the limitations. For these reasons I am of opinion that Venkataram Aiyar v. Nataraja Aiyar ILR (1912) M.L.J. 235

takes the right view of Order IX Rule 13, and that the answer to the question must be in the negative.

It is necessary however to state that the question relates only to applications for setting aside ex parte decrees and not to any other remedy

which a party may have.