Janki Prasad and Another vs Sukhrani

Arthur Strachey, C.J. and Knox, J.—In this case the District Judge of Jhansi has referred to this Court, u/s 617 of the Code of Civil Procedure, the question whether the legal representative of a deceased defendant against whom an ex parte decree was passed, can apply to the Court u/s 108 of the CPC to have the ex parte decree set aside.

Section 108 provides that "in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was made for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree upon such terms as to costs, payment into Court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."

Now, the remedy created by this section is in terms limited to the defendant against whom the decree has been passed ex parte. In such a case the section says "he may apply to the Court for an order to set it aside," and the applicant has to satisfy the Court that the summons was not duly served, or that he himself was prevented by any sufficient cause from appearing.

In order to make this remedy available to the legal representative, some general principle of law would be necessary by which the word defendant should be construed as including the legal representative of a deceased defendant. No authority has been cited to us, and we are aware of none, which establishes any such general principle.

The summary remedy of an application to set aside an ex parte decree is created by the section, and in determining to whom that remedy is available, we cannot look beyond the terms of the section itself. It is true that where a party against whom a decree has been passed dies, his legal representative is entitled to appeal against the decree if his interest is affected by it. Section 540 of the Code gives a right of appeal from an original decree, including a decree passed ex parte, in terms widely different from those of Section 108, and which do not necessarily confine the right of appeal to the person against whom the decree was passed, or exclude the legal representative whose interest is affected by the decree from appealing against it. The same observations apply to Section 584, which gives a right of second appeal.

Where the Legislature intended to allow the legal representative of a deceased defendant to have himself substituted for the defendant, or to allow a person claiming to be the legal representative to apply to set aside an order, it has expressly provided for such an application to be made by the legal representative or the person claiming to be such. Instances of such provisions will be found in Sections 363 and 371 of the Act. There is nothing of the kind in Section 108. The result is that, in our opinion, the Code gives no right to the legal representative of the defendant, or to any person except the defendant himself, to apply to the Court u/s 108 to set aside a decree passed ex parte. That is our answer to the reference.