Valia Konikkal Edathil Cheria Panji vs Marutha Veera Kavundan and Others

Munro, J.—The petitioner brought a suit to recover from three persons personally and as managers of a Devas-thanam Rs. 27-6-0, being

revenue paid by him for the defendants. The defendants did not appear, and the petitioner obtained an ex parte decree ordering that the defendants

personally and from the Devaswom property do pay to the plaintiff the sum of Rs. 27-6-0"" with interest and costs. On application by the 3rd

defendant u/s 108, Civil Procedure Code, the District Munsif set aside the whole decree as against all the defendants. The petitioner contends that

the District Munsif acted illegally.

Section 108, Civil Procedure Code, does not lay down that if an application by one of several defendants is granted, the whole decree must be

set aside in favour of all the defendants - Gopala v. Subbier. ILR (1903) M. 604 The extent to which the decree must be set aside will depend

upon the circumstances of each particular case. On. what principle then is the Court to act in deciding how far any particular decree is to be set

aside? There can, I think, be no doubt that the object of the section is that a more successful applicant should be put in exactly the same position as

if no decree had been passed in the suit, and the decree, therefore, must be set aside so far as is necessary to achieve this object, and 110 further.

In the present case the 3rd defendant was entitled to plead in the suit that neither himself personally nor the Devaswom property was liable for the

petitioner''s claim. Therefore, on the principle above enunciated, he was entitled to have the ex parte decree set aside so far, and so far only, as it

ordered payment by himself personally and from the Devaswom property. With the personal decree against the 1st and 2nd defendants, there was

no need to interfere. The personal decree against the 1st and 2nd defendants is, therefore, restored, and the District Munsif''s order is modified

accordingly. There will be no order as to costs.

Abdur Rahim, J.

The petitioner sued to recover from three defendants, personally and as managers of a Devaswom property, Rs. 27-6-0, being the amount of

revenue paid by the plaintiff for the defendants with interest, and, the defendants not appearing, a decree was passed ex parte in the terms of the

prayer in the plaint. Subsequently, the 3rd defendant made a successful application u/s 108, Civil Procedure Code, and the District Munsif

thereupon set aside the entire decree as against all the defendants. The petitioner contends that he was not authorised to do so at least as against

the ist and the 2nd defendants, and that is the objection pressed before us.

As I read Section 108, Civil Procedure Code, it prima facie means that the decree, so far as it gives any relief to the plaintiff against the

defendant who is able to establish that he was prevented from sufficient cause from appearing at the time of hearing, is to be set aside, and not

against those defendants in the suit who have no good cause to make for non-appearance or have not chosen to take any action. But it may

happen that the decree, from its nature, must, if set aside, necessarily exempt all the defendants from liability as is the case here with respect to so

much of the decree as directs the amount in question to be paid out of. the Devaswom property. In such cases the scope of Section 108, Civil

Procedure Code, as I understand it, is no doubt enlarged, but that is because it cannot be helped but if one were to go further and to hold that in all

cases where there is one cause of action against all the defendants, or where there is a common defence, the Court acting under this section has the

power to set aside the decree so far as it affects the defendants other than the applicant, it would, in my opinion, be putting too great a strain on the

language of the Legislature. I may refer to Section 544, Civil Procedure Code, where in the case of an appeal the Legislature I found it necessary

to expressly empower one of several plaintiffs or defendants in a suit in which the ""decree proceeds on a ground common to all the plaintiffs or all

the defendants to ''appeal against the whole decree and to authorize the Court to reverse A the whole decree, if it thinks fit, as furnishing a strong

though indirect corroboration of the view I have suggested. The decisions'' of the different High Courts on the point are not in accordance with one

another. The view I have mentioned is in agreement with that of the Bombay High Court in Manek Kom Pedru v. Sitaram Atmaram Kagh ILR

(1893) B 142 and of W.S. Seton-Karr and Dwarka Nath Mitter JJ. in Hurs Krishna Doss v. Molee Chand Babu. (1867) 8 W.R.C.R. 260 The

language of Section 119 of Act VIII of 1859 which the learned Judges in the last case had to construe was substantially the same as that of Section

108 of the present Code. More recently, however, in Mahammad Hamidulla v. Tohurennisa Bibi ILR (1897) C. 155 the judgment of Maclean

C.J. would, at first sight, seem to imply that in all cases u/s 108 a decree must necessarily be set aside as against all the defendants, but Banerji J.

seemed inclined to limit this to cases in which the decree is one and indivisible, or is based upon a ground applicable to the case of all the

defendants. In Monomohini Chowdhu rani v. Nara Narain Roy Chowdhri 4 C.W.N. 456, however, Maclean C.J. points out that he did not intend

to lay down in Mahomed Hamidulla v. Tohurennissa Bibi ILR (1897) C. 155 any proposition wider than that enunciated by Banerji J. In Bhura

Mai v. Har Kishen Das ILR (1902) A. 383 the majority of the Full Bench (Stanley C.J. and Burkitt J.) adopted the view of the Calcutta High

Court, but Aikman J., while agreeing with the judgment of the Court in that particular case, gives strong reasons for the more limited construction

of the section. In this High Court, in Gopala v. Sulbier ILR (1903) M. 604 the learned judges held that where the claim of the plaintiff, as in the

case with which they had to deal, did not rest on a basis common to all defendants, the Court cannot, on application by one of them, set aside the

decree as against the other defendants as well, but they expressed a doubt as to whether the result might not be different if the decree was based

on a common ground.

Holding, as I do for the reasons which I have briefly set forth, that the decree as against the defendants other than the one who has shown

sufficient cause within the meaning of Section 108, Civil Procedure Code, cannot be set aside except so far as it is one and indivisible, I am of

opinion that the Munsif had no power to set aside the decree obtained against the defendants i and 2, respectively, but that he was right in setting

aside so much of the decree as made the Devaswom liable for the money. I, therefore, agree that the order of the Munsif should be modified as

indicated.