Sadho Misser and Another vs Golab Singh and Others

The facts necessary to mention in determining this appeal are shortly as follows :-

The 3rd and 4th Defendants are owners of 8 annas of a six pie share of a talook of the name of Barnas, which share was on partition made into a separate tukta. They mortgaged, first of all, a 11/2 pie share of the whole of this talook to the Defendants Nos. 1 and 2; and they subsequently mortgaged a 3 pie share of mouzah Dhaka Karam, which is one of the 3 mouzahs which compose this talook, to the Plaintiffs. As a matter of fact one of the other mouzahs contained in this talook is called Barnas, that is to say, it bears the same names as the talook itself.

A. suit was brought, upon their mortgage, by the 1st and 2nd Defendants, including as parties the present Plaintiffs. By some mistake, which was obviously a clerical one, the plaint only asked for a decree in respect of the mouzah Barnas, and not of the talook Barnas. The present Plaintiffs did not appear in that suit, although served with summons; and at the hearing the Plaintiffs in that suit (who are the Defendants Nos. 1 and 2 in this suit) asked for, and obtained an amendment of their plaint by the substitution therein of the words " mouzah Barnas." The decree was made in accordance with that amendment; and the whole talook was sold in pursuance of that decree, and purchased by the present Defendants Nos. 1 and 2.

The Plaintiffs bring this suit to redeem the share of mouzah Dhaka Karam bought by Defendants Nos. 1 and 2; and their ease is that the mortgage of the Defendants Nos. 1 and 2 did not cover the entire talook Barnas, but comprised a 11/2 pie share in mouzah Barnas only. In addition, the present Plaintiff contended that as they were not served with notice of the application for amendment of the plaint in that suit they are not bound by the decree, but are entitled to treat that decree as not affecting their rights to redeem in any way and that therefore they have a right to bring this suit.

The Subordinate Judge held that the suit was not maintainable; and he proceeded to consider whether he could give the Plaintiffs any relief if he treated the present suit as an application made in the other suit, it happening that the Subordinate Judge who tried this suit was the same Judge who tried the other suit. He refused to give any relief on the grounds that the misdescription of the subject-matter of the first suit as mouzah, instead of talook, was a mistake; that there had been no fraud; and that the Plaintiffs'' right to redemption was foreclosed; and he dismissed the Plaintiffs'' suit.

On appeal the learned District Judge has held that the suit would lie on the grounds that the former suit to which the present Plaintiffs were parties was not a suit affecting mouzah Dhaka Karam, which was the mouzah mortgaged to them; that they had had no notice of the amendment; and that therefore they had not lost their right of redemption.

It is clear to us, however, that the Plaintiffs are not entitled to treat the decree in the former suit as if it were nothing. It was a decree made in a suit to which they were parties; and, although they had no notice of the application for amendment, they were as much bound by that order as by any other order in the suit. It is clear that, except in case of fraud, a suit does not lie to set aside a decree.

The CPC provides ways in which decrees can be set aside, that is to say, by appeal, by proceedings under see. 108 and similar sections, and by application for review.

If full effect is given to this contention of the Plaintiffs, it might be open to parties continually to dispute decrees by subsequent suits where there has been some error committed or some order made of which no notice was given. Many ex-parte orders are made in suits, sometimes perhaps erroneously, sometimes perhaps in oases in which notice should be given. But the mere fact that an order, which the Court had jurisdiction to make, and which in fairness it would have made if notice had been given to the other side, was made ex-parte, does not weaken the binding effect of the decree. At any rate, it does not have the effect of nullifying that decree.

No attempt was made to set aside this decree as provided by law; and therefore it seems to us that this suit would not lie.

Authorities have been cited to us to the effect that the mere fact that the application for relief is made in the form of a suit would not prevent the giving of that relief, if the application is in other respects one fit to be granted, and that the mere form of the suit would not exclude the right to relief. Taking that to be so, it is difficult to see how any effect can be given to the present suit. There is no doubt that the application does not in any way come under sec. 244 of the Code of Civil Procedure, which always must, as is pointed out in several decisions, treat the decree as one of binding force and deal with the case from the footing of that decree. It is either an application under sec. 108 or under sec. 623. In either case, so far as we can see, it is barred by limitation. The Plaintiff, at any rate, knew what had occurred in that suit when the registration proceedings took place; and these registration proceedings terminated nearly a year before the institution of this suit. Taking this suit as an application under either of these sections, in either case the application would have been barred; and there is no reason suggested for extending the time. For these reasons we think the District Judge is wrong, and we set aside his order and restore the judgment and decree of the Subordinate Judge. The Appellant is entitled to his costs in this Court and in the lower Appellate Court.