Authored By : Francis Maclean, Banerjee

Francis Maclean, C.J.

1. I am for my own part not satisfied that this case comeswithin Section 622 of the Code of Civil Procedure; but in the view I take ofthe construction of Section 108 of that Code, to which I will advert in amoment, it becomes unnecessary for me to decide that question. The question wehave to decide arises under these circumstances: A suit was brought against twosets of defendants upon a promissory note which had been made by two persons,one of whom died before the suit was brought. The suit was brought against thesurviving maker of the note and the heirs of the other maker of the note whohad, as I have said, died in the meantime. Two of these heirs were purdanashinwomen, and it appears that the necessary summons was not served upon them, andthat the decree as against them was made ex parte in these terms: " In theresult a decree for Rs. 468 be passed in plaintiffs favour together with costsat ex parte scale. The liabilities of the defendants 1 to 3 shall be to theextent of the property inherited by them from the deceased debtor."

2. The two defendants against whom the decree had been madeex parte made an application under Section 108 of the Code to have the decreeset aside. The application was granted, and the decree not only as against theapplicants but also as against the other defendants who had appeared anddefended was set aside. The question is whether it ought to have been set asideas against all the defendants, or only as against the applicants, thepurdanashin women, against whom admittedly the trial had proceeded ex parte.Apparently the point was not mentioned to the Munsif; any way he has notreferred to it.

3. The question turns upon the true construction of Section108 of the Code, the language of which is, perhaps, not so clear upon the pointas it might be. The first Clause of the Section somewhat favours the presentapplicants contention, but then the latter Clause, after stating that theapplicant must satisfy the Court that he was not properly served, goes on tosay, "the Court shall pass an order to set aside the decree" Thelanguage is imperative, " shall set aside the decree." Now what does"the decree" mean It must, I think, mean the decree, the wholedecree, made in the suit. It does not say part of the decree: it does not saythat part of the decree which affects the interest of the applying defendantalone, but it uses the words " the decree." Read according to theirordinary signification and natural meaning the words must mean, I think, thatthe Court shall set aside the whole decree; and that view is strengthened, I consider,by the last words of the Section, viz., "and the Court shall appoint a dayfor proceeding with the suit." The suit would appear to mean the whole,suit, not merely the suit as against or so far as it affected the particulardefendants making the application, but the whole suit. There seems to me reasonin this view of the Section. If the original decree was allowed to stand asagainst the original defendants who had appeared and defended the suit, and thesuit were only allowed to proceed on the second hearing, if I may call it so,as against the defendants against whom in the first instance the decree hadbeen made ex parte, I can conceive cases in which complications and possiblyinjustice might result. And it may well be that the Legislature, seeing thatdifficulties might ensue from making in suits in which there were severaldefendants a decree against them piecemeal, may have deemed it better that thedecree should not be set aside partially, but that the whole decree should beset aside. And I may point out that the plaintiff can hardly be heard tocomplain, for when the suit came on for hearing he knew perfectly well that hewas proceeding against some of the defendants ex parte, and that he wasincurring the risk---a fairly certain risk---of having his decree set aside, ifhe knew, as he must be taken to have known, that he was proceeding againstcertain of the defendants who had not been served. Nor can the defendants whoappeared be heard to complain. They must have known that the other defendantswere not in Court to defend, and a very little inquiry would probably havesatisfied them that they had not been served. If then those defendants hadpointed out to the Court that their co-defendants were not present, and that itwas questionable whether they had been served with the requisite summons, andthat they were purdanashin women, it is highly probable that the Court wouldhave adjourned the case to give the other defendants an opportunity of beingpresent or at any rate of being duly served. If, then, the whole decree be setaside, I do not think that either the plaintiff or the other defendants havemuch real ground for complaint.

4. Holding this view, on the best construction that I amable to place on the language of the Section, I think that the Judge in theCourt below arrived at a right conclusion, and that the rule must bedischarged.

Banerjee, J.

1. I also am of opinion that this rule ought to bedischarged. We are asked to reverse an order of the Court below made underSection 108 of the Code of Civil Procedure, setting aside an ex parte decree,so far as that order relates to the two defendants who had entered appearance,and against whom it is contended the original decree was not an ex partedecree.

2. Two questions arise for consideration: First, whether theapplication to this Court comes properly within Section 622 of the Code ofCivil Procedure; and, secondly, whether the order made by the Court below is aright order or not.

3. If the contention of the learned Vakil for thepetitioner, viz., that the order made by the Court below was wrong, werecorrect, I am inclined to think that the case would come under that Clause ofSection 622 of the Code, which authorizes this Court to interfere in cases inwhich a Subordinate Court has exercised a jurisdiction not vested in it by law.For the contention raised on behalf of the petitioner is this, that the Courtbelow, by Section 108 of the Code, was authorized to set aside only that partof the decree which was passed ex parte; and if, in making the order that ithas made, it has set aside also that part of the decree that was not passed exparte, I think that the petitioner may contend that it has, in so doing,exercised a jurisdiction not vested in it by law. This view is in accordancewith the decision of the Privy Council in the case of Brij Mohun Thakur v. RaiUmanath Chowdhry (1892) I.L.R. 20 Cal. 8: L. R. 19 I. A. 154 and with thedecision of this Court in Jogodanund Singh v. Amrita Lal Sircar (1895) I.L.R.22 Cal. 767.

4. But, then, is the decision of the Court below wrong, orwas the Court below right in reversing the entire decree as it has done,notwithstanding that some of the defendants had entered appearance Section 108of the Code says: " In any case in which a decree is passed ex parteagainst a defendant, he may apply to the Court by which the decree was made,for an order to set it aside, and if he satisfies the Court that the summonswas not duly served, as was the case here, " the Court shall pass an orderto sat aside the decree upon such terms as to costs, payment into Court, orotherwise, as it thinks fit, and shall appoint a day for proceeding with thesuit."

5. The Section, therefore, evidently contemplates thesetting aside of the decree made in the suit, and it directs the Court toappoint a day for proceeding with the suit.

6. It was argued that the decree in this case should betreated as a decree partly ex parte and partly not an ex parte decree, and thatthe Section authorizes the Court to set it aside only so far as it was an exparte decree. The Section, however, makes no such distinction, and as pointedout in the judgment of the learned Chief Justice, there may be very good reasonwhy the Section did not make any such distinction. It may often happen that thesetting aside of the decree as regards some of the defendants renders itnecessary in the interests of justice that the whole decree should bere-opened; and the present case is an instance in point. Here, of the twoparties who entered appearance, one was one of the executants of the promissorynote on which the suit is based, and the other was one of the three persons whoare now sued as the legal representatives of another executant of the note, nowdeceased; and if the decree were to stand as against the defendants who enteredappearance, and be set aside only as regards the defendants who did not enterappearance, then, in the event of the suit being dismissed as against thelatter, the result would be obviously hard as against the defendant who is suedas one of the heirs of the deceased executant of the note and who had enteredappearance at the original hearing. It is to avoid complications like this thatthe Legislature may have thought it fit to allow a decree made ex parte asagainst some of the defendants to be set aside in its entirety upon theirapplication, if the requirements of Section 108 of the Code are satisfied.

7. Two cases were relied upon by the learned Vakil for thepetitioners---Doorga Pershaud Ghose v. Greesh Chunder Bose (1864) 1 W. R. 222and Brojonath Surmah v. Anund Moyee Debia Chowdhrain (1867) 7 W. R. 237 aslending support to his contention. They were cases under Act X of 1859, andSection 58 of that Act, which corresponded to Section 108 of the Code,contained this provision, that if the petitioner " shall show good andsufficient cause for his previous non-appearance and shall satisfy theCollector that there has been a failure of justice, the Collector may, uponsuch terms and conditions as to costs or otherwise as he may think proper,revive the suit and alter or rescind the decree according to the justice of thecase."

8. That, I think, was different from the provision in thelaw now under consideration, which is imperative, and requires that the Courtshall pass an order to set aside the decree upon such terms as to costs, etc.,as it shall think fit, and shall appoint a day for proceeding with the suit. I,therefore, think that decisions under Act X of 1859 cannot be in point in casescoming under Section 108 of the Code, and the view I take receives some supportfrom the decision of this Court in the case of Dookhee Khan v. Rajessuree Ranee(1871) 15 W. R. 371 in which it was held that it was competent to the Judge ofthe Small Cause Court, on hearing the objections by one of the severaldefendants, to set aside the decree as to all, "if justice seems torequire it; as, for instance, if the objection is one which is common to thecase of all."

9. Cases may arise in which a decree, though nominally one,really consists of several decrees against different parties, the reliefgranted against each being separately specified. In such cases the contentionurged by the petitioners Vakil may hold good. But here the decree is one andundivisable, and I think that the Court below was right in setting it aside inits entirety under Section 108 of the Code, notwithstanding that some of thedefendants had entered appearance at the original hearing.

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Mahomed Hamidulla vs.Tohurennissa Bibi and Ors. (05.04.1897 -CALHC)