Kedar Nath Singh vs Kesri Mull and Others

Mohamad Noor, J.—This is an appeal against an order of a Subordinate Judge of Gaya refusing to set aside under Order 9, Rule 13 a mortgage decree which according to the appellant was ex parte against him but has been held by the learned Subordinate Judge not to be so. The suit in which the decree sought to be set aside was passed was to enforce a simple mortgage for Rs. 2,250 executed by Basudev Narayan Singh, defendant 1 of the suit, as karta of the family on 7th September 1917, and was among others against his two brothers Lal Narayan Singh and the appellant Kedar Nath Singh, who were defendants 2 and 3 in the suit. Defendant 4 was the minor son of defendant 2 and the other defendants as usual were impleaded as being interested in the mortgaged properties. By the time the suit was instituted the mortgage debt had swelled to a large amount, but only Rs. 17,000 was claimed, as the entire amount due could not be realized from the mortgaged properties. Defendant 1 did not enter appearance. Defendant 2 filed a written statement and appeared off and on, but as it appears from the order sheet was not present nor was he represented at least for some time during the trial of the suit which seems to have been mainly contested by defendants 13 to 15 who were subsequent transferees of the mortgaged properties or of some of them. Defendant 3, who is the appellant before us and seeks to have the decree set aside, was impleaded as a minor under the guardianship of defendant 1, his elder brother. As defendant 1 did not appear, a guardian ad litem was appointed for this defendant who filed a written statement. Thereafter it is not clear what steps this guardian ad litem took on behalf of defendant 3, but in the heading of the judgment his name appears as appearing for defendant 3. However, the suit proceeded to trial and a preliminary decree was passed on 30th January 1932.

The decree drawn up recites that it is inter partes against defendant 3 also. Final decree was passed on 17th February 1933. Execution was taken out on 5th December 1933 (Execution Case No. 403 of 1933). Notices were issued perhaps under Order 21, Rule 66, and one such notice was probably served upon defendant 3 Be that as it may, it appears that on 15th January 1934, he appeared in the execution case and applied for time. Thereafter, on 25th January 1934, he applied for inspection of the records of the suit, and on 24th February 1934, filed the present application for setting aside the decree which having been rejected the present appeal has been preferred. The learned Subordinate Judge found (1) that when the suit was instituted defendant 3 was a major and not a minor as described in the plaint, and though the fact of majority of defendant 3 was known or ought to have been known to the plaintiffs they described him as a minor not intentionally but perhaps inadvertently; (2) that notices were properly served upon defendants 1 and 2 and so was the notice on the guardian of defendant 3 nominated by the plaintiffs, namely defendant 1; (3) that defendant 3 must be presumed to have knowledge of the suit though not of the decree; and (4) that the application was not barred by limitation.

He has however refused to set aside the decree on the ground that it was not ex parte in form against the appellant, and therefore Order 9, Rule 13 had no application. He declined to exercise his inherent power u/s 151, Civil P. C, on the ground that there was no equity in favour of the applicant as he all along had full knowledge of the suit. He has referred to certain decisions which are to the effect that if a man, who is really a major, is sued as a minor, and he stands by and takes no steps, the decree passed in the suit is binding upon him. We are however not concerned with the question whether the decree is binding upon the appellant but whether he is entitled to have it set aside under Order 9, Rule 13. An ex parte decree though liable to be set aside is nevertheless binding as long as it is not set aside and cannot be collaterally questioned. The binding character of the decree necessitates steps for setting it aside. None of the cases relied upon by the learned Subordinate Judge lays down that the decree passed under such circumstances cannot, if a proper case be made out, be set aside.

The first question to be considered is whether the decree is really an ex parte one. No doubt, the decree as drawn up appears to be inter partes as against the appellant, as he has been shown therein to have appeared through his guardian ad litem. But in my opinion the decree in essence is really an ex parte decree. The suit was taken up on 18th January 1932. The order-sheet of that date shows that the plaintiff and defendants 13 to 15 were present. The order-sheet of subsequent dates does not show that from that date up till the date of disposal of the suit the guardian ad litem was present representing defendant 3 on any one of the dates when the case was heard. The guardian ad litem has been examined in this case on behalf of the plaintiffs to prove that he did file a written statement on behalf of the minor defendant 3 perhaps on the instructions of his natural guardian.

The guardian does not claim to have as it was not possible for him to have any independent recollection of the facts of the case. He was not asked on behalf of the plaintiff-respondents (the omission was either intentional or otherwise) any question to show that he was present in Court representing defendant 3 at the time when the suit was being tried. The question whether a particular decree is or is not ex parte is a mixed question of law and fact. The Court must examine the records of the case and examine the circumstances under which the decree was passed and if it is found that a particular defendant was not present at the time of the hearing of the suit the decree must be taken to be ex parte against him in spite of the fact that the decree as drawn up mentions his presence. The recital in the records is not conclusive. If any authority is needed for this simple proposition, I may refer to the decision of the Calcutta High Court in Sham Lal Sahu v. Ram Kumar Lal Bhagat (1912) 20 IC 67. In this case some of the defendants after filing written statements absented themselves at the time of the hearing of the suit. In spite of this the judgment and the decree were drawn up as if those defendants were present. Their Lordships held that the decree must be taken to be in essence ex parte against these defendants and the application to set it aside was maintainable. Assuming that in spite of defendant 3 being a major his appearance through a guardian ad litem was sufficient appearance in the suit, the fact that the guardian does not appear to have been present during the trial of the suit makes the decree an ex parte decree. It has not been disputed before us, as it cannot be disputed, that if a defendant enters appearance and then absents him-self altogether at the time of the hearing of the suit, the decree passed against him is ex parte. The decision of the Calcutta High Court above referred to is an authority for the proposition. In this view of the matter it is not necessary to decide whether the appearance of a guardian ad litem of a defendant who is in fact a major is proper appearance as in this case there was no appearance at all at the time of the hearing of the suit. Much reliance cannot be placed upon the heading of the judgment which is generally filled up by the office after consulting the record. The order-sheet which is written from day to day is more authentic as it is a contemporaneous record of the proceedings of the Court. In my opinion, the learned Subordinate Judge was wrong in holding that the decree was not an ex parte one.

The next question is whether the summons was properly served upon defendant 3. As I have mentioned, the learned Subordinate Judge has found that at the time of the institution of the suit he was a major. This finding of fact has not been and cannot be seriously challenged. It seems that long before the institution of the suit in 1930 defendant 3 entered into transactions as a major and there is absolutely no reason to think that at that time he had any motive in putting himself forward as a major had he in fact been a minor. Now the summons against defendant 3 was served upon defendant 1 who was described as his guardian. The serving peon''s report is that he first went to the defendant at his house in the town of Gaya. Defendants 1 and 2 were present but they refused to take summonses and asked the peon to go to their village home Rowna which is said to be about six miles from Gaya. The peon went there, and there also he found defendants 1 and 2, but they again refused to take the summonses and the notice of the guardianship of defendant 3

There was therefore substituted service by posting the processes on their house. The report of the peon does not show that defendant 3 was present either at Gaya or Rowna at the time of service of the summonses or of the notice. The service of summons against a major defendant upon a person who is described to be his guardian cannot be said to be a proper service on the defendant though the supposed guardian may be this brother. The learned advocate for the respondents drew our attention to certain passages in the evidence of their witness 2, Devaki Singh, to the effect that defendant 3 was present at Rowna when the summonses and the notice were served upon defendants 1 and 2. This evidence however, is in conflict with the statement of the peon in the report and is obviously untrustworthy Therefore, the decree being ex parte against the appellants and there not being a proper service of summons on him, he in my opinion is entitled to have it set aside, provided that his application was within time. The learned Subordinate Judge, as I have already said, has held that the application was not barred by limitation. That finding has been questioned before us on behalf of the respondents. The argument advanced by Mr. Das is that we must presume that defendant 3 had knowledge of the suit.

Therefore when on 15th January 1934 he filed the application for time in the execution proceedings, he must be presumed to have known at least on that date that the decree under execution was the one of which the suit had already been instituted. We must therefore attribute to him the knowledge of the decree on 15th January 1934, and the application having been filed on 24th February 1934 was out of time. First of all there is no evidence that the appellant knew of the suit. The utmost which can be, said is that it is likely that he knew of it. But the knowledge of suit is one thing and the knowledge of decree is another. It has been held and I may refer among others to the decision in Bapurao Sakharam Karmarkar Vs. Sadhu Bhivba Gholap, . that the knowledge of the decree, mentioned in Article 164, Lim. Act, is the knowledge of the particular decree and not a knowledge of a decree. A vague information about there being a decree is not sufficient for the period of limitation to run against the applicant. In my opinion the question whether the knowledge which an applicant had on a particular date can be said to be a knowledge of the decree is practically a question of fact.

In this case we find that on 15th January 1935, (it may be noted that this was the date on which the great earthquake occurred in this province) he filed an application for time in the execution proceedings. From the fact that he knew that a decree was under execution it cannot be inferred that he had complete information about the decree. A knowledge of a decree which was on the face of it inter partes, even if he saw it oh that day, cannot be said to be the knowledge of the decree passed under, the circumstances stated above. In fact, we find that within ten days of that date he actually applied for an inspection of the record of the suit. An indefinite knowledge which he had on 15th January 1934, of a decree against him being under execution in my opinion is not the knowledge contemplated in Article 164, Lim. Act. Then the steps taken by the appellant were prompt as he applied for the inspection of the record within ten days. The little delay must be ignored as it is a matter of common knowledge that for several days after the earthquake the work of the Courts was somewhat dislocated. I am of opinion that the learned Subordinate Judge has rightly held that the application was not barred by limitation.

The learned advocate for the respondents argued that assuming that there was no appearance on behalf of defendant 3, even then the decree cannot be set aside as this defendant was properly represented through defendant 1, the karta of the family, and his natural brother. First of all the decree is admittedly ex parte against defendant I also. He did not appear in the suit. The only thing which can be said is that the karta was served with summons. But a service of summons on the karta is not a service on other members of the family who are impleaded in the suit. They may have their own defence to make. Then we are not concerned, as I have said, with the effect of the decree as it stands against defendant 3. The simple question before us is whether the decree against him is ex parte and whether the summons was served upon him.

If these two questions be answered in his favour, he as I have said is entitled to get the decree set aside in spite of the fact that the karta Was a defendant in the suit. The learned advocate relied upon a decision of this Court in Lalchand Thakur and Others Vs. Sheogobind Thakur, . But it appears that the question in that case was whether the decree, which was obtained after the names of some of the defendants were expunged from the record was still binding upon them. Their Lordships held that the karta was there and thus those defendants in spite of their absence from the record were bound by the decree. Neither this decision nor the decision of the Privy Council in Sheoshankar Ram v. Juddo Kunwar Reported in AIR 1914 PC 136, on which it is based, is an authority for the proposition that a junior member of a Hindu family who is made a defendant in a suit and against whom an ex parte decree is passed, is not entitled to have it set aside if summons was not served upon him, and that is the issue before us and not the binding character of the decree.

The next point urged was that if the decree be set aside it should be set aside only so far as it affects the appellant. Now it is a mortgage decree and the mortgage debt is indivisible. If the decree be set aside in part, complications will arise at the time of the execution and anomalous results may follow: I would therefore allow this appeal with costs, grant the application of the appellant and set aside the entire decree, both preliminary and final, passed in the suit. The suit will be restored to its original number and tried as expeditiously as possible. The learned lower Court will pay particular attention to it.

Madan, J.

I agree.