KALAMANI MISRA Vs. MAKHANLAL MODA

JUDGEMENT

(1.) PLAINTIFF is the petitioner. Plaintiffs case is as follows : The opposite party (defendant) has a building in Cuttack town. By two mortgage deeds dated 31st march 1953 and 14th October 1953, the defendant mortgaged, the house in favour of the plaintiff for Rs. 11,000/ -. On 1st December 1953, defendant executed an agreement to sell the house to the plaintiff for Rs. 13,000/ -. On the very day, defendant took Rs. 500/- and put the plaintiff in possession. On nth march 1954 defendant took a further sum of Rs. 500/- which was verbally agreed to be adjusted towards the balance consideration. It was settled between the parties at the time of agreement to sell that Rs. 12,000/- would be set off towards the consideration and the defendant would receive the balance of Rs. 1000/- only and the plaintiff was to bear all the costs of the sale-deed and that the sale deed would be executed a month after the final disposal of the Maintenance Suit No. 13 of 1951 filed against the defendant by his grand-mother. That suit was disposed of on 31st March 1955 and the house in dispute was subject to a charge of Rs. 20/towards the maintenance of the grand-mother. The defendant obtained Khasmahal permission in Misc. case No. 477 of 1954-55 to sell the house to the plaintiff for rs. 13,000/-, and in the application for permission the defendant clearly stated that the sale was for discharge of the aforesaid mortgage deeds of Rs. 11,000/- As the defendant did not execute the sale deed despite repeated demands and advocate's notice, the plaintiff instituted Title Suit No. 17 of 1956 in the Court of the Subordinate Judge at Cuttack. The plaintiff prayed for specific performance of contract and execution of the sale-deed in his favour by the defendant on payment of the balance consideration of Rs. 1000/- for, in the alternative, for a decree for rs. 13,785/- inclusive of principal and interest. The defendant took various adjournments for a period of about two and half years on different dates of hearing. on 1st October 1958 the suit was decreed ex parte. Misc. case No. 201 of 1958 was filed on 30th October 1958 under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree. The Misc. case was dismissed for default on 20th august 1960 after the defendant took various adjournments for a period of two years. Against this order of dismissal the defendant filed Miscellaneous Appeal No. 104 of 1960 in the High Court which was dismissed on 19th April 1961. Against the dismissal order, M. J. C. No. 39 of 1961 was filed and the same was dismissed on 8th September 1961. Against the very order of dismissal dated 20-8-1960, another Misc. case No. 145 of 1960 was simultaneously filed by the defendant under Section 151, C. P. C. in the Court of the Subordinate Judge. That Misc. case was dismissed on contest on 24th July 1961. Against that order of dismissal. Civil revision No. 268 of 1961 was filed which was dismissed on 30th November 1961. The defendant filed Misc. Case No. 140 of 1961 on 20-10-61 in the Court of the subordinate Judge of Cuttack under Section 151, C. P. C. and prayed that the order dated 1-10-1958 and the ex parte decree following it in Title Suit No. 17 of 1956 be reviewed and proper orders be passed thereon. The learned Subordinate judge allowed the Misc. case on 14th April 1962, set aside the ex parte decree dated 1-10-1958 and fixed the Original Suit for hearing. Against the aforesaid order dated 14-4-1962, the Civil Revision has been filed.

(2.) ACCURACY of the aforesaid facts relating to various proceedings has not been challenged before me. The defence case may also be stated in extenso. The defence case is that under the very terms of the agreement (Ex. 3), he was entitled to the balance sum of Rs. 12,500/- and the mortgage money of Rs. 11,000/,- was not agreed to be adjusted out of the amount. Despite the specific case made out by the defendant, proper issues had not been framed by the Court. The ex parte judgment dated 1-10-1958 decreeing the suit for specific performance of contract does not deal with the issues and does not even give the reasons whatsoever for the conclusion arrived at by the Court. As the learned subordinate Judge while disposing of the suit, did not act in accordance with the provisions of Order 20, Rule 5, C. P. C. , the judgment is not a judgment at all, it is a nullity and a judgment not supported by reasons cannot be accepted as legally binding on the parties. In this view of the matter, the suit, mentioned above, has not been properly disposed of. Neither the order dated 1-10-1958 nor the decree following it is valid and bind-ing on the parties to the suit, and such an order is either a mistaken or erroneous one -- the mistake or error being apparent on the face of the record. Due to the mistake or error committed by the Court by its order dated 1-10-1958, the defendant has been seriously prejudiced and even the agreement (Ex. 3) clearly mentions that the plaintiff is to pay the balance of Rs. 12,500/- at the time of taking the Kabala from the defendant. The Court without giving any reason whatsoever passed a decree depriving the defendant of the said sum of Rs. 12,500/- which the plaintiff has to pay before obtaining a decree. Unless the order dated 1-10-1958 and the decree following it in the aforesaid suit are reviewed the defendant would be greatly prejudiced.

(3.) THE learned Subordinate Judge accepted the defence stand, allowed the application under Section 151, C. P. C. , set aside the ex parte decree dated 1-101958 and restored the suit for trial. His conclusion is based on the finding stated in the following words :