Monomohini Chowdhurani and Another vs Nara Narayan Roy Chaudhri and Another

Maclean, C.J.—This was a suit brought by the present Petitioners against some 47 Defendants, of (sic) Defendants Nos. 1 and 2 were (sic) Defendants, and the others pro (sic) Defendants, for a declaration of (sic) and recovery of possession of certain land, the subject-matter of the litigation. A declaration of title was asked for against Defendants 1 and 2 and a claim for khas possession was made against the other Defendants, who were the tenants and in actual occupation of the land. The claim was contested only by Defendants 1 and 2 and the tenant Defendants, that is, the Defendants other than the Defendants Nos. 1 and 2, did not contest the case or appear upon the trial, and on the 21st December 1895 a decree was made in favour of the Plaintiffs against all the Defendants, substantially as I understand, in accordance with the terms of the prayer of the plaint, a decree ex parte as against the tenants in possession.

The Defendants Nos. 1 and 2 appealed against that decision, both to the Subordinate Judge and to the High Court, but to neither of these appeals did they make the tenant Defendants parties, and ultimately, on the 15th of August 1898, the decree of the Munsif which had been confirmed by the Subordinate'' Judge was again affirmed by the decree of this Court.

Early in March 1896 some five of the tenant Defendants applied to the Munsif''s Court, under sec. 108 of the CPC to have the ex parte decree set aside as against them, upon the ground mentioned in that section, and on the 23rd of March 1899, the Munsif granted the application and ordered " that the ex, parte decree is set aside and the original Regular Suit No. 59 of 1894 is restored to the file"-- Defendants 1 and 2 were no parties to those proceedings. Subsequently, viz., on the 23rd March. 1899, Defendants 1 and 2 appeared before the Munsif and asked that they might be allowed to defend the suit de novo and to file fresh defences, and on the 1st of July 1899, this application was granted by the Munsif. Hence the present application under sec. 622 of the Code of Civil Procedure, the ground of the application being that the Munsif who made the orders of the 23rd March and 1st July respectively, had no jurisdiction to do so, so far as Defendants 1 and 2 are concerned.

The opposite party, the Defendants Nos. 1 and 2, contest the application upon the ground that the case is not one within sec. 622 of the Code of Civil Procedure, reliance being placed upon a dictum of my own in the case I am about to mention, and that the Munsif who made the order of the 23rd of March 1899 had ample jurisdiction to make it, and that the case, in effect, is governed by the decision of this Court in the case of Mahomed Hamidulla v. Tohurennissa Bibee I. L. R. 25 Cal. 155(1897).

This, to my mind, is a mistaken view, the case relied upon being of a very different nature from the present. I am satisfied that this case is well within sec. 622 of the Code and that it may be disposed of upon the short ground that the Munsif, by his order of the 23rd March 1899, was setting aside, as against the Defendants Nos. 1 and 2, a decree, not of his own Court, but a decree of this Court, and that he bad no jurisdiction to do so. Sec. 108 of the Code contemplates the case of the Court which actually made the decree setting aside its own decree, and not setting aside that of another and a higher tribunal, otherwise we should be lauded in the absurdity that if Defendants 1 and 2 had taken this case to Her Majesty in Council, and, as against them, the decree had been affirmed, the Munsif on the application of other Defendants could set aside the decree of Her Majesty in Council. This can scarcely be.

Upon this short ground I hold that the Munsif had no jurisdiction to make the orders he did in favour of Defendants 1 and 2 and that the case falls within sec. 622 of the Code. Further I see no reason to resile from the opinion which I expressed conjointly with my learned brother Mr. Justice Banerjee in the case to which I have referred, and upon which the opposite parties rely. The remarks I made there were remarks made in relation to the particular circumstances of the particular case which was then before us, and the present case is fairly distinguished not only upon the ground I have already stated, but upon the further ground that although the decree here may have been engrossed on one and the same piece of paper, and was nominally one, it was virtually two decrees, one for a declaration of title as against the Defendants Nos. 1 and 2, the other for khas possession against the tenant Defendants. The case of Hamidulla v. Tohurennisa Bibee I. L. R. 25 Cal. 155 (1897) was of a different nature altogether. In that case there was only one decree, one and undivisible, as my learned brother pointed out, and we did not see how, under such circumstances, and having regard to the language of sec. 108 it could be set aside, otherwise than in its entirety. But that is not the present case.

On these grounds, the rule must be made absolute with costs 3 gold-mohurs. Banerjee, J.

I am of the same opinion. The Petitioners, who were the Plaintiffs in the Court below ask us under sec. 622 of the CPC to set aside two orders made by the lower Court: one on the 23rd of March 1899, setting aside the decree made in the suit against the Defendants, some of whom did not appear, but two of whom, namely, the Defendants 1 and 2 did appear, and did appeal unsuccessfully against that decree, on the application of some of the non-appearing Defendants; and another order made on the 1st of July 1899, allowing the Defendants Nos. 1 and 2 to put in a fresh written statement in the new trial that had been ordered; and the grounds upon which we are asked to interfere are, first, that the Court below had no jurisdiction to set aside so much of the decree as had been passed against the Defendants Nos. 1 and 2 who had entered appearance, on the application of the non-appearing Defendants, under sec. 108 of the Code of Civil Procedure, because the decree against these two Defendants ought, having regard to the pleadings in the case, to be treated as a separate decree from that made against the non-appearing Defendants, and, secondly, that the Court below had no jurisdiction to set aside the decree in so far as it related to the Defendants Nos. 1 and 2, because that part of the decree had been confirmed on appeal to this Court, and had in effect become a decree of this Court. On the other hand, it is contended by the learned vakil for the Defendants Nos. 1 and 2 who oppose this rule, that the case does not come within the scope of sec. 622 of the Code, and that, even if it comes within the scope of that section, the orders made by the Court below were right and in accordance with the decision of this Court in the case of Mahomed Hamidulla v. Tohurennissa Bibee ILR 25 Cal. 155 (1897).

I am of opinion that the case comes within the scope of sec. 622 of the Code, because the error into which the Court below has fallen in setting aside the decree as against the Defendants Nos. 1 and 2 is not a mere error of law, but is an error of law that has led to a wrong assumption of jurisdiction by that Court. I am of opinion that the Court had no power, under the law, to set aside the decree made in this case as against the Defendants Nos. 1 and 2, first, because that decree was not an ex parte decree, and, secondly, because that decree had been confirmed by a superior Court; and if it had no power to set aside that part of the decree, and yet, upon an erroneous view of sec. 108 of the Code, thought that it had that power, its action was clearly one of wrong assumption of jurisdiction, and, as such is clearly open to revision by this Court under sec. 622 of the Code.

Then as to the second point, it is true that in the case referred to, this Court held that where a decree is made ex parte against some of several Defendants against whom the suit is brought, and the non-appearing Defendants apply under sec. 108 of the Code to set aside that decree, the Court has power to set aside the entire decree; and that I do not think that this Court was called upon in that case to decide, whether, in every such case, the Court is bound to set aside the whole decree. On the contrary, I find an express reservation of opinion in one of the two judgments delivered in that case in regard to one class of cases, namely, the class in which a decree, though nominally one, really consists of several decrees against several parties; and the present case clearly comes within that description.

There is an additional point of distinction between the present case and the case relied upon in the argument, and that is this, that the decree as against the two appearing Defendants had, in the meantime, been confirmed by, and had, in effect, become the decree of, a superior Court.

For these reasons I am of opinion that the Court below had no jurisdiction to set aside the decree in so far as it related to Defendants Nos. 1 and 2. The rule must, therefore, be made absolute, and the decree as originally made against those Defendants must stand.

Harington, J.

I am of the same opinion. It appears to me that the order which the Munsif sought to set aside owed its validity to the fact that it had been confirmed by this Court and so become in effect an order of this Court, and consequently the Munsif had no jurisdiction to set it aside. That being so, the case clearly falls within sec. 622 of the Code of Civil Procedure.