Surendra Kumar Singh and Others vs Mukund Lal Sahu and Others

Ray, J.—This petition arises out of a proceeding under Order 9, Rule 13, Civil P.C. started by the opposite party for setting aside an ex parte decree (final) for foreclosure passed in Title Suit No. 90/43 in the Court of the 1st Munsif, Kishanganj. The application for setting aside the ex parte decree was made by two out of three defendants in the suit. Non-joinder of one of the defendants in the application for setting aside the ex parte decree amounted to the, decree having obtained finality against him. The result of setting aside the ex parte decree at the instance of two defendants out of three amounted to setting aside the decree which had been made final against one of the defendants. However, this anomaly is not before me for consideration.

The application was based on the ground that after the preliminary decree they had received no notice of an application by the plaintiff for making the decree absolute, and there fore, it was not competent for the Court to pass a decree for foreclosure. The learned lower appellate Court came to a finding that there was no service of notice, but he found that service of notice was essential before a final decree could be passed. On this finding he set aside the ex parte decree. The present revision is directed against that order.

Two points have been urged before me, (1) that Order 9, Rule 13 is inapplicable to a proceeding for making a decree final and (2) that under the law no service of notice is essential before the decree can be made final. Both these points have been dealt with and decided by a Division Bench of this Court in the case of Birendra Prasad Suhul v. Srimati Kiranbala Mittra by Harries C.J. and Brough J. by their judgment dated 2nd November 1942, in a case in which the facts were on all fours with the present case. The learned Judges held that no notice is necessary to be given to the defendant about the plaintiff''s application for making a preliminary decree final. They further held that even though a proceeding for making the decree final is a proceeding in a suit, yet Section 141, Civil P.C. does not apply thereto. Therefore, a final decree passed ex parte cannot be set aside under Order 9, Rule 13. As I am bound by this decision irrespective of my personal opinion about these points, I have to follow the same and that disposes of this civil revision.

It has been strenuously contended before me by Mr. Mitter that the Court could set aside the ex parte decree in exercise of his inherent power. I cannot persuade myself to accept this contention inasmuch (sic) there was no abuse of process of Court in this case, and it is only for granting relief against such abuse that inherent power is given. Inherent power is not intended to be exercised by way of spinning out a new procedure for a particular suit or proceeding. If, according to law, no notice was necessary of the application for making the preliminary decree final, I do not see that there was any abuse of the process of the Court as has been pointed out in the unreported decision already referred to. Every defendant who has notice of the preliminary decree is deemed to have notice of a subsequent proceeding which is bound to follow for making the decree final, in case he fails to deposit the money in Court. The rules of Order 81 relating to suits for foreclosure make it incumbent upon the defendant to deposit the money in Court. That is probably the reason why no notice is given to the defendant before the decree is made final. Under the circumstances, being bound by the decision of this Court, I am constrained to allow this petition and set aside the order of the Court below.

I do not also see how the ends of justice could be served by setting aside the ex parte decree which would necessarily involve loss of vested right of the plaintiff decree-holder. Ends of justice do not mean justice to one party and injustice to another.

In the peculiar circumstances of this case, I make no order as to costs.