HIRALAL MORARKA Vs. SITARAM MANEKCHAND

JUDGEMENT

(1.) THIS is an appeal from an order of Shah J. refusing to set aside an ex parte decree at the instance of defendant 2. The suit was filed on 26-1-1950, and the cause of action was moneys lent and advanced to the two defendants who were described as carrying on business under a partnership name. An ex parte decree was passed against both the defendants on 4-7-1950. Defendant 1 took out a notice of motion on 21-10-1950, to set aside the ex parte decree, and on 16-2-1951, the ex parte decree was set aside as against defendant 1. On 13-3-1951, defendant 1 filed his written statement. On 17-7-1951, defendant 2, who is the appellant before us, took out a notice of motion to set aside the ex parte decree as against him. Shah J. dismissed the notice of motion on 27-7-1951, and hence this appeal.

(2.) NOW, the application to set aside the ex parte decree as far as defendant 2 is concerned is time-barred, and Mr. Bhabha who appears for the appellant concedes it. But his contention is that his client's application is really under our inherent jurisdiction and he appeals to us to exercise our inherent jurisdiction under Order 9, Rule 13 and set aside the decree as a whole and not only against defendant 1. Mr. Bhabha bases his contention on two grounds. Mr. Bhabha says that the suit is based on one single transaction. The defence put forward by defendant 1 in this written statement is a defence which is common to both the defendants. The defence put forward by defendant 1 is not a defence which is an individual defence, and therefore according to Mr. Bhabha the decree which has been passed is one and indivisible, based upon the same cause of action, and arising out of the same transaction. The other contention put forward by Mr. Bhabha is that assuming the defence of defendant 1 prevails and he succeeds in resisting the plaintiffs claim, there would be two inconsistent decrees on the file of this Court; an ex parte decree already passed against defendant 2 and dismissal of the suit as against defendant 1; and this result will be arrived at although, as pointed out, the cause of action against both the defendants is common and the transaction on which the plaintiff relies is a single transaction.

(3.) IN order to decide whether Mr. Bhabha's contentions are tenable, we must look to the language of Order IX, Rule 13. It may be pointed out that under the old Code, when an application for setting aside an ex parte decree was made by any defendant, the provision was that the Court shall make an order setting aside the decree. The Code was amended and in the amended Code the language used in Order IX, Rule 13, is "the Court shall make an order setting aside the decree as against him. " Therefore, the principle accepted by the Legislature in Order IX, Rule 13, is that the ex parte decree shall ordinarily be set aside only against the party who applies to set aside the ex parte decree. I use the word "ordinarily, because there is a proviso to Order IX, Rule 13, and the proviso provides that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also. It is clear that the proviso emphasises the nature of the decree. What the Court has got to consider is whether the decree which it is setting aside at the instance of one defendant is of such a nature that it cannot be set aside as against that defendant only. Therefore, the infirmity must be in the decree itself. The obvious illustration would be a partition decree. If one of the defendants applied to set aside a partition decree, the Court could not set aside such decree against that defendant only because it would be impossible to work out a partition decree in the absence of any of the parties. Now, can it be said that in the decree which was passed in this suit, there is anything which makes it impossible for the Court or makes it difficult for the Court to set it aside as against defendant No. 1 only. The decree is only a money decree passed against both defendants Nos. 1 and 2. The decree can be worked out and can be executed even though the decree against defendant No. 2 stands and is set aside only against defendant No. 1. There is nothing in the nature of this money decree which the Court has passed which renders it difficult for the Court to set aside only guae one of the the defendants who are parties to the suit.