KUNJAN VASUDEVAN Vs. SARASWATHI

JUDGEMENT

(1.) The short question for decision is whether a defendant in a suit for partition who chooses to remain ex parte can plead in execution that the final decree is void. The execution court before which the respondents (defendant 63 and mortgagee) questioned the validity of the decree held against them but in appeal the lower appellate court reversed the order. Defendants 26 to 31 and 110 on whose application the final decree was passed and whose execution petition has been dismissed have preferred this second appeal.

(2.) We are unable to uphold the decision of the lower appellate Court. The 63rd defendant was served with summons but she chose to remain ex parte. So the question whether a Court has jurisdiction to pass a decree without issuing summons to the defendant, covered by the decision in 29 TLJ. 574 (F.B) does not arise for decision. A suit for partition must be deemed to be pending until the final decree is passed (see AIR 1940 PC 11 ) and a defendant who chose to remain ex parte and who is aggrieved by the decree must get it set aside by resorting to one of the well known modes provided by the Code such as an application to set aside the decree, or appeal or review. Although we are hearing the second appeal, the powers we exercise in this case are really those of the execution Court. It may be open for the respondents to seek appropriate relief in the proper Court subject to such objections as to limitation or otherwise as the other parties may be entitled to raise. Sitting on the execution side we must hold that the Court has only to execute the decree as it stands.

(3.) We therefore allow the second appeal, set aside the decision of the lower appellate Court and restore that of the execution Court. In the circumstances of the case there will be no order as to costs.