Mrinalini Dassi vs Kumar Surjendu Narayan Deb

Chakravartti, C.J.—This appeal involves certain questions of some nicety which do not seem to have been canvassed in any previous case.

The facts are simple and for the most part undisputed. It appears that on May 17, 1946, the Appellant, Mrinalini Dassi, brought a., suit against the two Respondents under a promissory note for the recovery of a sum of Rs. 10,679-1-2. The suit was one under Order XXXVII of the Code of Civil Procedure. On that suit being brought, writs of summons were issued on May 31, 1946, but they were returned by the Sheriff on August 2, following with an endorsement to the effect that no one on behalf of the Plaintiff had attended at his office to assist him in effecting service. Thereafter, the matter seems to have gone into cold storage and no steps were taken till February, 1950. In that month the Court issued a notice to the Appellant to inform her that the suit would be set down on the Special List on February 8, 1950, which meant that it would appear for dismissal on account of default, unless good cause to the contrary was shown. The Appellant thereupon showed some cause by a petition in which it was merely stated that the solicitor in charge of the case had died in September, 1946, and thereafter no steps had been taken. The matter came up on February 8, 1950, before Sarkar, J., who directed the suit to be placed in the Special List for disposal immediately on the expiry of one month. The learned Judge did not state the reason or the purpose for which he granted the adjournment, but presumably he did so in order to give the Appellant an opportunity to serve the Respondents, if that course was still open to her. Thereafter, on February 17, 1950, the Appellant made an application before the Master, praying for the issue of fresh summonses and by an order passed on the same date, the Master directed fresh summonses to issue. In the application made before the Master also, no cause for the delay was mentioned except that the solicitor in charge of the case had died in September. 1946. In pursuance of the order made by the Master, summonses were served on March 20, 1950, on an officer of the Respondents. They, thereupon, filed an warrant of appearance and made an application before Bachawat, J., praying that the order of the Master, directing the issue of fresh summonses, might be set aside and the suit might be dismissed under Order IX, Rule 5 of the Code of Civil Procedure. Bachawat, J., gave effect to both of those contentions. He set aside the order of the Master and thereafter dismissed the suit. It is against that judgment and order that the present appeal is directed.

Bachawat, J., overruled the contention of the Appellant that he had no jurisdiction to set aside the order of the Master. The learned Judge held that he was entitled to do so and proceeding to deal with the order on the merits, he held that the Master''s order was both without jurisdiction and bad on the merits. He appears to have held that he was entitled to disregard the service effected in pursuance of the order of the Master and treat the case as one where summonses had been returned unserved and no steps had been taken by the Appellant to have fresh summonses issued within the period of three months. Accordingly, he dealt with the case as one coming under Order IX, Rule 5 of the Code and dismissed the suit in accordance with the terms of that rule.

A great variety of points were canvassed before us at the hearing, but all centred round three broad contentions. It was first contended by Mr. Sen, who appeared on behalf of the Appellant, that in view of the fact that the suit was one under Order XXXVII of the Code, the Respondents were not entitled to make the application which they had made without obtaining leave to appear and defend the suit, which they had not done. He contended in the second place that, in any event, Bachawat, J., had no jurisdiction to set aside the order of the Master except in an appeal preferred to him. It was lastly contended that Order IX, Rule 5 of the CPC did not apply to the Original Side in regard to all its provisions and that in so far as there was a limit of three months prescribed by the rule, that limit did not apply to the Original Side. I shall deal with these points in the order in which I have stated them.

The first point about Order XXXVII was not taken before Bachawat, J. and is not included in the ground of appeal, though it appears that it was distinctly taken in para. 8 of the affidavit-in-opposition before the learned Judge. There it was stated that the suit having been filed under Order XXXVII of the Code, the Defendants that is to say, the Respondents in this appeal, had no right to make the application unless leave of the Court had been taken to enter appearance and to defend the suit. The point, however, is a point of law, involving no investigation of facts and can be allowed to be taken in the appeal.

The objection is based upon Order XXXVII, Rule 2(2) which, so far as is material, provides that--

In any case in which the plaint and summons are in such forms, respectively, the Defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend.

Mr. Sen''s contention was that the Respondents could not make the application unless they appeared in the suit and they could not appear in the suit unless they obtained leave which they had not done. Accordingly, they were not entitled to make the application and the learned Judge had no jurisdiction to entertain it.

The argument was resisted by Mr. Deb, who appeared on behalf of the Respondents, on several grounds. He submitted, in the first instance, that the suit could not be treated as a suit under Order XXXVII, inasmuch as the plaint filed was not a plaint in any form prescribed. He referred to Sub-rule (1) of Rule 2 of Order XXXVII which provides that the relevant suits must be "instituted by presenting a plaint in the form prescribed". It would be remembered that Sub-rule (2) speaks of "plaint and "summons" "in such forms", the reference being to forms as mentioned in Sub-rule (1) of the rule. Mr. Deb pointed out that Sub-rule (1) clearly required the plaint in a suit brought under Order XXXVII to be in a prescribed form, but since no form had been prescribed at all either by the CPC or by the rules framed thereunder or by the Rules of the Original Side, there could be, as matters now stood, no suit under Order XXXVII at all and the present suit was clearly not a suit under that Order. If the suit was not a suit under Order XXXVII, the disability imposed on Defendants in such suits by Sub-rule (2) of Rule 2 did not clearly apply.

This contention does not appear to me to be tenable. The effect of accepting it would lead to the extraordinary result that Order XXXVII is wholly nugatory and has been so since it was enacted, inasmuch as no form has yet been prescribed for plaints to be filed in such suits. All suits pending in the Original Side of this Court or in one or other of the Courts mentioned in Rule 1 of Order XXXVII and purporting to be suits under Order XXXVII would have to be treated as ordinary suits. In my opinion, Sub-rule (2) of Rule 2 does not create that extraordinary position. The answer to Mr. Deb''s argument is furnished by the provisions of Order VI, Rule 3 to which he himself referred and which provides that-

The forms in Appendix A when applicable, and where they are not applicable, forms of the like character, as nearly as may be, shall be used for all pleadings.

Provision has thus been clearly made to cover cases for which no specific forms have been prescribed and the provision is that in such cases plaints shall be drawn up in a form approximating the form prescribed for suits of a like character. Among the forms prescribed by the CPC itself, there is a form for suits for money lent and it appears to me clear that a plaint drawn up in a form, approximating Form No. 3 in App. A of the Code of Civil Procedure, will be a plaint "in the "form prescribed" within the meaning of Rule 2 of Order XXXVII. The provision contained in Rule 3 of Order VI is also a prescription and it is clear to my mind that when a plaint for a suit under Order XXXVII is framed in a form approximating the form prescribed for a suit for money lent, it will be a plaint in the prescribed form, for, by Rule 3 of Order VI such forms approximating forms specifically prescribed, are also prescribed. I am accordingly of opinion that the first ground taken by Mr. Deb must fail.

It was next contended by Mr. Deb that there was still another reason why Sub-rule (2) of Rule 2 of Order XXXVII would not apply to the present case, because, in his view, the sub-rule presupposed a case where the Defendant had been served by summons. The argument was that the sub-rule barred the Defendant from appearing and defending the suit, but no question of appearance or defence in the suit itself could possibly arise before the summons had been served. What the Respondents had done in the present case was, according to Mr. Deb, not that they had appeared in the suit or had taken any steps towards defending it, but they had appeared at a preliminary stage which was hemmed in by no restrictions. Mr. Deb submitted that the restrictions prescribed by Sub-rule (2) of Rule 2 came into operation only after service of summons had been effected, but prior thereto, the Defendant in a suit under Order XXXVII was as free as the Defendant in any other suit to take such stepks as the ordinary law permitted.

This contention also does not appear to me to be sustainable. I am unable to hold that for the purposes of Sub-rule (2) of Rule 2, the appearance of a Defendant in a suit under Order XXXVII can be dissected into two parts, one being appearance before service of summons and the other being appearance thereafter. It is noticeable that the first part of the rule says that "the Defendant "shall not appear or defend the suit", the words "appear" and "defend" being separated by the disjunctive "or". It is thus clear that the disability attaches separately both to appearance and to defence and, therefore, so far as appearance is concerned, the disability seems to me to attach to appearance at any stage. It is true that the latter part of the rule speaks of "leave * * * to "appear and defend". There, the two words "appear" and "defend" are joined by the conjunctive "and", but the reason is clear. No one would appear in a suit simply for the sake of appearance, but would appear for the purpose of defending it. Clearly, therefore, while "appearance" and "defence" are mentioned separately in the earlier part of the rule, the latter part which deals with the stage when leave has been granted speaks of "appearance" and "defence" together, because after leave has been granted, the second act goes with and necessarily follows the first. I should, therefore, think that apart from any question of defending the suit on the merits, the Defendant in a suit under Order XXXVII cannot appear at any stage of the suit and for any purpose whatever without obtaining leave of the Court so to appear.

Besides, appearance prior to the service of the summons would also be appearance in the suit. To take the present case, it could by no means be said that the proceeding commenced by the Respondents by their application to have the order of the Master set aside was a proceeding outside the suit. To speak of appearance which is no appearance in the suit seems to me to proceed upon an impossible notion. If the proceeding in which the Respondents appeared was a proceeding in the suit, as in my view it was, their appearance was an appearance in the suit and that being so, they were not entitled to appear unless they satisfied the condition laid down in Sub-rule (2) of Rule 2.

In aid of his argument Mr. Deb also submitted that Sub-rule (2) of Rule 2 referred to that stage of a suit where the Defendant was defending it, and, therefore, if a particular proceeding had nothing to do with the defence of the suit, such proceeding, although a proceeding in the suit itself, would be outside the mischief of Sub-rule (2) of Rule 2. This argument proceeded on the assumption that the appearance contemplated by Sub-rule (2) of Rule 2 was appearance for the purpose of, and in course of, defending the suit. I have already pointed out that the first part of the rule refers to appearance and defence separately, but even apart from that circumstance, I should think that when the Defendant makes an application for having an order directing the issue of a fresh writ of summons set aside, he is in fact defending the suit. He may not be defending it on the merits, but he is trying to ward off the whole suit altogether and it appears to me that in such a case he is operating from the outermost line of defence. In order that a suit may proceed effectively against a Defendant, it is imperative that he should first be served with summons and when a Defendant is trying to establish that by reason of events which have happened he can no longer be served, he is certainly trying to defend himself against being served and protect himself against the approaching suit. It may be defence at a long range, but in my view it is still a defenee. I should, therefore, think that even on the basis of Mr. Deb''s contention that in order that Sub-rule (2) of Rule 2 may apply, it is necessary that the Defendant should be defending the suit, the bar contained in the Sub-rule would apply when the Defendant applies to have an order for the issue of a fresh writ of summons set aside.

The last argument advanced by Mr. Deb on this part of the case was that in fact his clients had entered only a limited appearance. He referred us to the warrant of appearance filed and pointed out that it was expressly limited to the purposes of the particular application. The argument, it appears to me, avails Mr. Deb nothing, because although the appearance was qualified in the manner stated by him, the application was an application, not merely for having the order of the Master set aside, but also for having the suit dismissed. The appearance, therefore, was an appearance for the purposes of the whole suit and it would follow that the factual foundation necessary for Mr. Deb''s last argument does not exist.

If Mr. Deb is not right in his contention that the present suit cannot be treated as a suit under Order XXXVII and if he is also net right in contending that the disability imposed by Sub-rule (2) of Rule 2 attaches to the stage subsequent to the service of summons, the point taken by Mr. Sen must obviously prevail and no other question would arise. But I would point out that even assuming that Mr. Deb was right in contending that Rule 2 of Order XXXVII presupposed that a service of summons had already been effected, his argument would still not apply to the present case, inasmuch as there had, in fact, been a service of summons before the stage at which the learned trial Judge came to deal with the case. Mr. Deb was conscious of the difficulty and contended that the order of the Master, directing the issue of fresh summonses was a nullity and therefore the service in fact effected was liable to be ignored altogether. He contended further that even assuming that the order of the Master was not a nullity and summonses were validly issued in pursuance of the order, there had still been no valid service in the present case, inasmuch as the summonses had been served on a person who was not authorised to accept service. In view of what appears to me to be the true construction of Rule 2, of Order XXXVII, it is not necessary to deal with these contentions of Mr. Deb. His contention as regards nullity will, however, have to be examined in connection with Mr. Sen''s next point. So far as the objection as regards the invalidity of the actual service is concerned, Mr. Sen conceded that if it was found relevant to enquire whether the summonses had been served on a person authorised to accept them, the case would have to go back for a decision of the question. For the reasons I have already given, however, it is not necessary to decide that question at all.

I may now pass on to the second ground taken by Mr. Sen which, it will be recalled, is that the learned Judge had no jurisdiction to set aside the order of the Master. The argument was put in the following way. It was said that with regard to certain applications specified in the Rules of the Original Side the Master and the Judge in Chambers had a concurrent jurisdiction. One such application was an application for the issue of fresh summonses. If an application in respect of which the Master and the Judge in Chambers had concurrent jurisdiction came, in fact, to be dealt with by the Master, the only way in which the Master''s order could be challenged before a Judge was be preferring an appeal under the provisions of Rule 15 of Chapter VI of the Rules of the Original Side. A Judge in Chambers could not, according to Mr. Sen, deal with an application for setting aside an order made by the Master by way of reconsidering or reviewing or vacating it. It was, therefore, contended that inasmuch as there was no appeal before Bachawat, J., but only an application for setting aside the Master''s order, the learned Judge had no jurisdiction to entertain or give effect to that application.

The argument rests on certain rules of the Original Side. The basic rule is Rule 11 of Chapter VI which enumerates a number of applications which can be disposed of by a Judge in Chambers. There are eighteen items in that rule-two of which may be referred to as relevant. They are item No. 12, "applications * * * generally all application relating to the conduct of any "suit or matter" and item No. 14, "all proceedings on the returns "of writs or notices issued before or after judgment requiring "cause to be shown in Chambers." Rule 11 is followed by Rule 12 which provides that the Registrar or Master may transact all such business and exercise all such authority and jurisdiction as may be transacted or exercised under the rules by a Judge in Chambers, subject to certain exceptions which are not material in the present case. There is thus a concurrent jurisdiction in the Master and a Judge in Chambers in respect of applications specified in the rules. In addition to those enumerated in Rule 11, there are certain other applications mentioned in App. Z to the Rules which include an application "for fresh summons" (item 9). That item contains a reference to Rule 9 of Chapter VIII which provides that barring certain exceptions "a fresh writ of "summons shall not be issued without an order to be obtained in "Chambers." It is thus clear that with regard to an application for fresh summons, the Master and a Judge in Chambers have a concurrent jurisdiction.

The argument of Mr. Sen was that since the Master and a Judge in Chambers were co-ordinate authorities in the contemplation of the rules and since the rules expressly provided that after the Master had made an order on an application, it could be challenged before a Judge only by means of an appeal, a Judge had no jurisdiction to set aside the order of the Master in any other proceeding. In my view, that contention is right.

It. will be pertinent at this stage to deal with the reasons given by Bachawat, J. in support of his view that he was entitled to set aside the order of the Master. The learned Judge referred to a large number of decisions, but seems to have relied, principally on the decision in Battersby v. Anglo-American-Oil Company, Limited (1945) 1 K.B. 23, 32, and particularly on the following passage in the judgment of Lord Goddard:--

While a Defendant who is served with a renewed writ can, no doubt, apply for it to be set aside on the ground that there was no good reason for the renewal, his application may very possibly come before a master or judge other than the one who made the order and who will not necessarily know the grounds on which the discretion was exercised.

Bachawat, J. appears to have read this passage as implying that the Master and the Judge were interchangeable even in respect of applications for setting aside, an order passed by the Master. With great respect, that appears to me to be a misreading of the passage. What the learned Lord Chief Justice obviously meant was that the application might come before a Master other than the Master who had directed the issue of the fresh writ or it might come before a Judge other than the Judge who had given such a direction. It does not mean that the application might come before a Judge, although the original direction had been given by a Master.

Another ground given by Bachawat, J. is that although it might be proper for an application for reconsideration to be made before the Judge or the Master who had made the Original Order, no useful purpose would be served by insisting on that course in the present case inasmuch as the application was a contested one and therefore it would have to come before a Judge, in any event, by reason of the provisions of item (a) Rule 12, Chapter VI, of the Original Side Rules. That rule, although it is expressed in the very curious form of three exceptions successively excepting one another, the net import is that the Master cannot hear a contested application except with the consent of the parties. Mr. Justice Bachawat''s view was that inasmuch as the application before him was a contested one and there could be no question of the parties agreeing to its being heard by the Master, it would have to come before him, in any event, and therefore to stage an infructuous proceeding before the Master would be a piece of useless formality and a purposeless addition of an unnecessary chapter to the proceedings.

With great respect again, the view taken by the learned Judge does not appear to me to be right. It is true that by reason of the provisions of item (a) of Rule 12 of Chapter VI contested applications are excluded from the jurisdiction of the Master except where the parties concerned consent to his hearing them. But it is perfectly clear to my mind that the applications, contemplated by item (a) are original applications specified in Rule 11 or it might be in App. Z as well which are all applications made in the first instance. When one such application has been made and it has been disposed of by the Master, a further application for a reconsideration of the order passed does not appear to me to be also an application contemplated by item (a) of Rule 12. Such an application must, in the nature of things, be made before the authority who passed the original order, unless he is unavailable for some reason or other. Applications of that character are, in my view, clearly outside the purview of the applications contemplated by item (a) which contemplates applications of the specified kind, in respect of which the Master and the learned Judge in Chambers have a concurrent jurisdiction. The applications enumerated in Rule 11 or those enumerated in App. Z do not include an application for a review or reconsideration of an order made on an application of the nature specified in those provisions. With regard to such applications, no concurrence of jurisdiction is provided for by the rules, and it appears to me that such applications are by their very nature and by reason of the absence of any provision to the contrary contained in the rules, within the exclusive jurisdiction of the authority who passed the order sought to be reviewed or set aside. It is only the primary jurisdiction to hear the specified applications, when made in the first instance, which is assigned concurrently to a Judge in Chambers and the Master. Once either of those authorities have dealt with an application, the concurrence is exhausted and the other authority can no longer exercise the primary jurisdiction, nor can he review the order except that the Judge in Chambers can do so in an appeal. With regard to a review of an. order made by one of the authorities, no concurrent jurisdiction has been conferred on both of them by the rules and the applications contemplated by Item (a) of Rule 12 are only those which can be heard by a Judge or the Master, but do not include applications for setting aside a previous order. I would, therefore conclude that Bachawat, J. was not right in holding that the application before him would have to come to him, in any event being a contested application and there being no possibility of the parties agreeing to the Master dealing with it.

Certain other grounds were urged by Mr. Deb in support of the view taken by the learned Judge. He submitted that Rule 15 of Chapter VI did not provide that a Judge could deal with an order passed by the Master only in an appeal preferred to him in all cases. According to Mr. Deb the operation of the rule was limited to cases where the Master disposed of an application on summons. In order that the argument may be better appreciated, it will be convenient to read here the material part of the rule. It runs thus:

Any person affected by any order or decision of the Registrar or Master may appeal there from to a Judge. Such appeal shall be by way of endorsement on the summons by the Registrar or Master at the request of any party, or by notice (No. 1A) in writing to attend before the Judge without a fresh summons within five days after the decision complained of, or such further time as may be allowed by a Judge or the Registrar or Master.

Mr. Deb concentrated on the second sentence in the above passage and pointed out that the rule spoke of an appeal by way of endorsement on the summons by the Master which presupposed that there had been a summons and that the latter part of the rule spoke of a notice to attend before the Judge" without a fresh summons, which again presupposed that there had been a summons at an earlier stage. Mr. Deb''s argument was that the effect of that two-fold reference to the summons was to limit the operation of the rule to cases where there had been a summons and that if there was ever an order passed by a Master on application without summons, there was no provision that even such an order could be dealt with by a Judge only in an appeal taken from the order. For the purposes of the present case Mr. Deb''s point was that since the Master had not made the original order on summons, the Respondents were not required by Rule 15 to challenge it before a Judge by way of an appeal, but they could challenge it by an application to have the order set aside, as they had, in fact, done.

In my view, the contention of Mr. Deb is not correct. The first sentence of Rule 15 speaks of an appeal from "any order or "decision of the Master". The second sentence begins by speaking of "such appeal". The word "such" clearly refers back to the appeals mentioned in the first sentence and the reference is not qualified by any exception. It would, therefore, appear that the provision which follows and is contained in the second sentence is intended to apply to appeals from all orders or decisions passed by the Master. It is true that the first part of the second sentence speaks of endorsement on the summons and clearly that part of the sentence does contemplate a case where there had been a summons before the Master. But in my view the second alternative- contained in the second sentence is free of that requirement. It speaks of "notice in writing to attend "before the Judge without a fresh summons". The whole argument of Mr. Deb was based on the word "fresh" which, according to him, meant a second or a further summons. The use of the word "fresh" is by no means a happy one, but in my view the true intent of this part of r. 15 is reasonably plain. What the earlier part of the alternative provision says is that an appeal may be preferred by notice in writing to attend before the Judge. When it proceeds to say that such an appeal may be "without a fresh summons", it only means, without a summons in addition to the notice in writing. The notice in writing is by itself a command or a request or a warning to attend before the Judge and the use of the word "fresh" in connection with the word "summons" in the next part of the rule obviously means that there need not be a further request or a further command or a further warning in the form of a summons. That, in my view, is the true implication of the word "fresh" and not, as Mr. Deb suggested, that the summons contemplated is a second summons in a case where there had been a summons before the Master already. I would therefore, hold that Rule 15 of Chapter VI admits of no exceptions and that the effect of the rule is to provide that once an order has been made by the Master, a Judge in Clambers can set it aside only if an appeal is preferred to him, but cannot entertain an application to set it aside by way of a review or reconsideration even if the may have had concurrent jurisdiction with regard to the original application. It is true that at the first stage, that is to say, at the stage of the initial application, a party can go at his choice either to the Master or to the Judge in Chambers, but if a party has opted for the Master and made his application before him and an order has been made, the concurrence of jurisdiction is exhausted and thereafter the Judge in Chambers can come into the field only by the track of an appeal. It is not the intention of the rules that after having made an application either before the Master or before the Judge in Chambers, a party can take the matter at subsequent stages indiscriminately either before one authority or the other.

It was next contended by Mr. Deb that, in any event the learned Judge could be deemed to have dealt with the application as an appeal. He was the appellate authority, had considered the application on the merits and had made an order. If any appeal had actually been preferred before him, he would not have dealt with the matter in any different way and, therefore, to hold that, his decision was an invalid one, because no formal appeal had been preferred before him, would be to carry technicality beyond all reasonable limits. The argument is an attractive one, but I find it impossible to give effect to it by reason of another provision contained in Rule 15. That rule provides that an appeal can be preferred only within five days from, the date of the order complained of or such further time as the Judge may allow. Bachawat, J. did not, in fact, deal with the application before him as an appeal, but proceeded on the footing that he was entitled to deal with it as an application. He had no occasion at all to apply his mind to the time-limit required for an appeal and certainly, did not extend it, either expressly or by implication. If he is now deemed to have dealt with the matter as in an appeal, he must be deemed to have entertained a time-barred appeal without granting the necessary extension of time. I feel, therefore, constrained to hold that the order of the learned Judge cannot be supported on the assumption that he was in essence exercising an appellate authority.

The next argument of Mr. Deb was a fundamental one. He contended that the order of the learned Master was itself a nullity and if it was so, the learned Judge was entitled to disregard it altogether and no question as to his competence to hear an application to set it aside would arise. It is clear that if this argument of nullity is a valid argument, it must ensure to the benefit of. Mr. Deb''s client both for the purposes of his meeting the second point of Mr. Sen and for his meeting the first point, in case, however, so far as the first point is concerned, his construction of Rule 2 of Order XXXIII was accepted.

What Mr. Deb contended was that this was a case where the summons had been returned unserved and the Plaintiff had failed for a period of three months from the date of the return made by the Sheriff to apply for the issue of a fresh summons. When she did in fact apply, three months had long expired and further the cause shown by her for the delay did not satisfy any of the grounds specified in Rule 5 of Order IX of the Code. It was accordingly contended by Mr. Deb that the learned Master, having an. application before him made long after the expiry of three months from the date of the endorsement by the Sheriff and having no cause shown within the meaning of Rule 5 of Order IX, had no jurisdiction whatsoever to direct the issue of a fresh writ of summons and the direction actually given by him was a nullity. If it was a nullity, the service effected in pursuance of the direction was equally a nullity. If so, Bachawat, J., was entitled to disregard the learned Master''s order altogether and to treat the purported service as no service at all, irrespective of whether he was approached as an appellate authority or as a court of first instance. The order of the Master and the service effected in pursuance thereof being null and void Bachawat, J., was not obliged to take any notice of them at all.

Before dealing with this contention of Mr. Deb, it is necessary to clear the ground by disposing of two contentions of Mr. Sen. He contended in the first place that Order IX, Rule 5, had no application to the present case, for this was not a case where the summons had been "returned unserved" within the meaning of that rule. The contention, as I understood it, was that Rule 5 of Order IX contemplated that an actual attempt at service should be made and that attempt should prove a failure, If a summons never left the office of the Court at all and was returned to the issuing authority, it would not be a case, according to Mr. Sen, of the summons being.returned unserved. The second contention of Mr. Sen was that Order IX, Rule 5, of the CPC did not apply to the Original Side of this Court in so far as it laid down a limit of three months for an application for the issue of a fresh summons. In my view neither of these contentions is sound.

To take the first contention first, I am unable to see why the present case was not a Case of the summons having been "returned "unserved". Rule 5 of Order IX begins by saying that "a summons "has been issued to the Defendant". "Issued to the Defendant" cannot obviously mean actually served On the Defendant. It can only mean ordered to be issued and placed in the hands of the appropriate officer. There can be no doubt that in the present case summonses wera issued to the Respondents. The next thing which happened was that no one appeared at the office of the Sheriff to assist him in effecting service and thereupon he lodged the summonses with the Registrar with the endorsement to which I have already referred. Clearly, the summonses were returned and clearly they were not served. I am unable to see why it should be said that the terms of the rule were not satisfied by those facts of the present case. Nor does the meaning contended for by Mr. Sen accord with good sense. Rule 5 of Order IX obviously intends to impose a penalty on the Plaintiff for his default in the matter of serving the Defendants. If failure to serve the summons in the field, if I may use that expression, attracts the penalty, I am unable to see why the greater lack of diligence exhibited by a Plaintiff when he takes no steps at all to assist the serving officer should be regarded as not attracting the consequences laid down in the rule. In my view, both as a matter of language and as a matter of the obvious intention of the rule, it must be held that the summonses in the present case were returned unserved within the meaning of Rule 5.

The second contention of Mr. Sen was based principally on the general language of Rule 9 of Chapter VIII of the Original Side Rules as also on item 9 of App. Z and, further, on the provisions of Rule 46 of Chapter XXXVIII. It was contended that Rule 9 of Chapter VIII contemplated that a fresh writ of summons could always be issued, provided an order was obtained in Chambers. Item 9 of App. Z gave an unqualified power to direct the issue of fresh summons. Rule 46 of Chapter XXXVIII provided that the Court or a Judge would have power to enlarge or abridge the time appointed by the rules or fixed by any order enlarging time for doing any act or taking any proceeding. It was contended that these various rules constituted between themselves a complete code which did not include any limitation of time as regards applications for the issue of a fresh writ of summons, and, therefore, in so far as there was such a provision in Order IX, Rule 5, of the Code, such provision was excluded. In my view, that contention is plainly untenable. What the rules referred to by Mr. Son clearly do is to provide for a general power of issuing a fresh writ of summons. The circumstances in which and the conditions under which such power is to be exercised are not dealt with by the Rules of the Original Side at all. Section 129 of the Code which empowers the Court to make rules to regulate its own procedure in the exercise of its Original Civil Jurisdiction only lays down that nothing contained in the Code shall affect validity of any such rules in force at the commencement of the Code. There is nothing in the provision of Rule 5 of Order IX which affects in any way the validity of any of the rules referred to by Mr. Sen. Rule 5 of Order IX and those rules can clearly co-exist. In view of the clear difference in respect of the territories covered by the rules relied on by Mr. Sen and the provisions of Rule 5 of Order IX, I am unable to hold that there is anything in the former rules to exclude the full operation of Rule 5 of the Code. The second contention of Mr. Sen must also be overruled.

Eeverting to the contention of Mr. Deb I am entirely unable to hold that the order passed by the learned Master, even conceding that it was erroneous, was a nullity. He had jurisdiction under Rules 11 and 12 of Chapter VI and under item 9 of App. Z to deal with applications for the issue of fresh summons. He had thus jurisdiction over the subject-matter. It may be that the application before him was not made within the time limited by law and did not also satisfy the statutory conditions which applications of that kind are required to satisfy. These deficiencies might have the effect of affecting the legality of the order passed by the learned Master, but in view of the fact that he had jurisdiction over the subject-matter, the order would operate as a valid order till it was set aside in appeal. As has so often been pointed out-and what indeed has become now a common-place of legal knowledge-there is a fundamental distinction between existence of jurisdiction and error in its exercise. Jurisdiction depends upon the power of the authority concerned to take cognizance of a matter and if that power exists the errors he may commit in the process of taking cognizance, either by disregarding certain procedural rules or failing to comply with certain statutory requirements, may make the order passed by him illegal, but will not make it null and void. An order can be regarded as a nullity and so liable to be assailed collaterally as of no effect at all, only when the authority passing the order had no jurisdiction over the subject-matter, whether pecuniary, personal or territorial. In other cases, where such basic jurisdiction exists, errors are only errors in the exercise of jurisdiction but there is no disability attaching to the assumption of jurisdiction and therefore the order passed, although it may be wrong on the merits, cannot be treated as a nullity. It is really not necessary to cite authority in support of this proposition, but reference may be made to one decision cited at the Bar, viz., Hriday Nath Roy v. Ram Chandra Barna Sarma ILR (1920) Cat 138 (F.B).

Mr. Deb had yet other grounds to urge. He contended that the learned Master had no jurisdiction even over the subject-matter because the applications enumerated in Rule 11 of Chapter VI and in App. Z did not include an application for extension of time to apply for fresh summons. He referred particularly to the language of item 9 of App. Z which, it will be remembered, is "application for fresh summons". That language, Mr. Deb contended, did not include an application for an extension of time to apply for summons. In my view, there are two answers to that contention. In the first place, the items in Rule 11 or App. Z are, in my view, to be construed in accordance with the principles applied to the construction of legislative items and not in the strict grammatical manner in which positive rules contained in statutory provisions are construed. If any authority is given jurisdiction to deal with applications for fresh summons, he is by that language also given authority to deal with applications for extension of time to apply for summons. It is, however, not necessary to deal further with this question inasmuch as the application actually made in the present case before the learned Master was not an application for extension of time at all, but an application for a direct issue of a fresh writ. In regard to such applications at least, the learned Master had clear jurisdiction under the provisions of item 9 of App. Z and, therefore, Mr. Deb was plainly not right in contending that the present case was one where the learned Master had no jurisdiction even over the subject-matter. It may be that the learned Master acted wrongly and erroneously in directing fresh summons to issue in the absence of a previous order extending the time on an application made in the manner prescribed by Rule 5 of Order IX. But the application he had before him was an application for the issue of summons in regard to which he had certainly jurisdiction and even if he made an erroneous order in respect of that application, it could by no means be said that he had usurped jurisdiction or made an order in respect of a subject-matter which was not within the purview of his powers at all.

A further ground upon which Mr. Deb said the order of the learned Master was a nullity was that Order IX, Rule 5, contemplated that only the Court could extend time for making an application for fresh summons. He pointed out that the rule referred to the Court in two contexts, viz., in connection with dismissing the suit against the Defendant not served and in connection with extending time for making an application for a fresh Summons. It was contended that the "Court" contemplated by the rule was obviously a Court which could both dismiss the suit and extend time and therefore since a Master could not dismiss a suit, a Master could not be the "Court" within the meaning of the rule for the purpose of extending time for an application for fresh summons. The conclusion contended for was that the learned Master in the present case had made an order which only a Judge could have passed and accordingly the order was a nullity.

There are several answers to this contention. One which goes to the root of the matter is that, in fact, the learned Master did not deal with an application for extension of time, hut only with an application for issue of summons. But apart from that answer on the question of construction it appears to me that the Master can he the Court within the meaning of the second part of Rule 5 in view of the distribution of the functions of the Judge under the Rules of the Original Side. The CPC which has in contemplation the hierarchy of Courts as constituted under the Civil Courts Act naturally uses the expression "Court" and no others. It does not know the Master, but under the Rules of the Original Side, certain of the functions of the Judge can be performed by the Master as also by the Registrar and the consequence must be that, in certain cases at least, where the CPC speaks of the Court, it must be taken to mean in the vocabulary of the Rules of the Original Side, also the Registrar or the Master. There was some discussion before us as to whether the Master could dismiss a suit in any circumstances. There is certainly no clear provision in the rules to show that he cas and I would concede, though I do not decide the point, that so far as the first part of Rule 5 is concerned, the order of dismissal contemplated can be made only by a Judge. But it does not seem to me to follow that the order for extension of time must also be always made by a Judge and that the Master cannot make such an order. It is clear that the two parts of Rule 5 contemplate two different stages of a suit, one subsequent to the other. The stage at which an order of dismissal is made is obviously a stage subsequent to that at which an application for extension of time to serve the Defendant will be made and it does not seem to me that there is anything in the language of Rule 5 or in the Rules of the Original Side to require that the order for extension of time, made at the earlier stage of the proceedings, cannot be made, by the Master. But, as I have pointed out already, the Master did not in the present case mate an order for extension of time and did not purport to deal with any application for such extension. He dealt with a direct application for the issue of summons and it would therefore seem that the point raised by Mr. Deb does not really arise.

The last point urged by Mr. Deb was that if Bachawat, J., had no jurisdiction to set aside the order of the Master, equally had we no jurisdiction to set aside his order, inasmuch as the order was not appealable. Mr. Deb reminded us that Mr. Justice Baehawat''s order fell into two parts, one setting aside the order of the Master and the other dismissing the suit which resulted in a decree. Mr. Deb contended that so far as the first part of the order was concerned, no appeal lay from it, inasmuch as it was not a judgment by which any question affecting the rights of the parties on the merits had been decided.

I am not quite certain that no question affecting the rights of the parties was decided by the order, because it seems to me that the question of the subsistence of the Plaintiff''s right to serve the Defendants and to proceed with the suit was decided. But again it is not necessary, in my view, to consider the question from that angle because of the provisions of Section 105 of the Code of Civil Procedure. That section provides that no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction except as otherwise expressly provided. Having laid down that rule, the section provides:

But, 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 a ground of objection in the memorandum of appeal.

That provisions means that although a particular interlocutory order may not be appealable as such, its correctness can still be challenged in an appeal from the final decree. As any one who has examined the provisions of the Code with some care knows, when the Code provides for an appeal from certain interlocutory orders but provides none from others, it does not throw around the latter an absolute protection against challenge at any stage. It merely postpones the challenge till an appeal is preferred from the final decree. Since there has been a decree passed in the present case and since that decree has been appealed from, the validity or otherwise of the order setting aside the Master''s order can, in any view, clearly be canvassed in the appeal from the decree and the fact that the learned Judge''s order, in so far as it set aside the learned Master''s order, was not appealable as such is wholly immaterial.

This, in my view, is sufficient to dispose of the last point of Mr. Deb and I must not be understood, as I have already said, to have decided one way or the other whether the first order of Bachawat, J., was appealable as such.

The above were all the contentions urged from the Bar. In my view, the first point taken by Mr. Sen is decisive and it is really unnecessary to consider any other point. But the second ground taken is also unassailable and must, in my view, succeed. Since the first ground succeeds, the effect is that the Respondents had no right to make the application they did and the learned Judge had no right to entertain their application. No other question then arises. Since the second ground also succeeds, the position is that the present case was one where there was, in fact, a service of summons which could not be disregarded and that being so, the case was not one which came within the ambit of Order IX, Rule 5. The learned Judge was, therefore, not entitled to treat the case as a case under that rule by eliminating the proceedings before the Master as of. no effect and by treating the suit as still at the state at which it was before the learned Master made his order and before the summonses were served. The suit, at the time it came before the learned Judge, was not a suit in which the summonses had been returned unserved and that being so, Order IX, Rule 5, had no application.

For the reasons given above this appeal must be allowed. The judgment and the order of Bachawat, J., are accordingly set aside. The application of the Respondents for setting aside the learned Master''s order is dismissed and the suit is directed to be restored to file.

The Appellant will have her costs both before us and Bachawat, J.

Certified for two counsel.

S.R. Das Gupta, J.

I agree.