(1.) A petition under Order 47, Rule 1 read with Section 151, Code of Civil Procedure to review the final decree proceedings and to set aside the final decree having been rejected, the Petitioner has moved this revision. It is his case that O. S. No. 143/65 in which his father was Defendant No. 1 was preliminarily decreed on 20 -11 -1966. The Plaintiff applied for final decree on 11 -12 -1973 but before notice was issued, the Defendant No. 1, who was the father of the Petitioner and opposite party No. 7 as also the husband of Defendant No. l(Ka), expired on 20 -3 -1974, but despite the fact that the order -sheet of the court showed him to have been substituted, yet no notice was issued to the legal representatives either before substitution or after it. In the final decree proceeding, a Civil court commissioner was appointed on 11 -7 -1975 to effect partition but no notice thereof was also issued to the parties either by the court or the commissioner. 'The mother of the Petitioner and opposite party No. 7, Hara Dibya, who had been substituted on the death of Defendant No. 1 as Defendant No. 1 (Ka) expired in October, 1975 but no steps for substitution in her place was also taken. The report submitted by the civil court commissioner was behind the back of the Petitioner and neither he nor opposite party No. 7 had any opportunity to file objections to the report. On the basis of the report, the 'preliminary decree was also amended so as to include another item of property as lot No. 1 and the commissioner was again directed to divide that property. The further report of the commissioner was also without notice to the Petitioner and for other Defendants. In spite of such allegations the final decree was passed on 18 -1 -1977. On an application being made on 27 -9 -1978. the final decree was amended on 16 -5 -1980. The Petitioner having received information from one Jayamadhab Panigrahi, an advocate of Bhadrak on 21 -1 -1982 that the predecessor -in -interest of opposite parties 1 to 6 was to take delivery of possession in Execution Case No. 129/80 and realise the costs; he discovered on enquiry the fraudulent actions perpetrated and filed the petition for review. The application was contested by the opposite parties contending that notices had been properly served on the legal representatives of deceased Defendant No. 1 and hence any review was not permissible. The learned Subordinate Judge discussing the evidence came to the conclusion of the Petitioner and the other legal representatives having received notice for which no interference was called for and apart from it he also held the petition to be barred by time.
(2.) MR . Kar, has raised a preliminary objection of substantial importance contending that if at all the final decree proceeding continued behind the back of the Petitioner and the suit was decreed exparte behind his back, a Petitioner under Order 47, Rule 1 or Section 151. Code of Civil Procedure was not maintainable and the remedy to the Petitioner was only under Order 9, Rule 13 of the Code.
(3.) THOUGH absence of notice would enable the Defendant to ask for a review, yet the exercise of such power must be within the scope and ambit of Order 47, Rule 1. An ex parte decree being available to be set aside by the court which passed it both under the provisions of Order 9, Rule 13 Code of Civil Procedure as also under Order 47, Rule 1, it is but apparent that the powers are not exercisable simultaneously and that the power under Order 47, Rule 1 can be invoked only in the specific circumstances where such absence of notice is an error apparent on the face of the record. If such error is not so apparent and would need leading of evidence to establish the fact that in effect notice had not been served upon the Defendant, it is more properly a case under Order 9, Rule 13 Code of Civil Procedure than to be set aside by exercise of power of review. To be explicit, one would be a case of apparent non -issue of notice to the Defendant which would appear on the face of the record itself, and the other would be where the absence of notice upon the Defendant has to be established before the court through evidence and other materials. The former would justify a review whereas in case of the latter, Order 9, Rule 13 has to be invoked, it being the specific provision in the statute for the purpose. In, A.I.R. 1981 Kar 35 (Gangadhar Bhat v. Srikant and Anr.) it was held that a Defendant can take recourse to remedy under Order 47 only if he has not preferred any appeal from the decree and when he is able to make out a case of review on the limited grounds on which review is permissible. If however he takes recourse to the remedy of appeal, he may have to make out a case for setting aside the decree only on the basis or the material available on record or on such other additional evidence which may be brought on record under Order 41 Rule 27, Code of Civil Procedure. Generally, though having regard to the limited scope of Order 47 and Section 96 of the Code of Civil Procedure, a Defendant avails the remedy under Order 9 Rule 13 whose scope is far wider when compared with the other two, inasmuch as he becomes entitled to adduce evidence to show that summons were not duly served or that he was prevented by sufficient cause from appearing when the suit was called for hearing, yet he cannot be prevented, if he so likes, from choosing a less advantageous remedy to get the ex parte decree set aside.