BAL KISHAN LAL Vs. TOPESWAR SINGH

JUDGEMENT

(1.) The subject-matter of the litigation which has given rise to this appeal is immoveable property claimed by the plaintiff-appellant as a member of a joint Mitakshara familu. According to the plaintiff, at the time of the institution of the suit, the family consisted of his father, Lachmi Pershad, who is the fourteenth defendant in the suit, one Rajendra Pershad (the fifteenth defendant) and the plaintiff himself. Before the birth of the plaintiff, who is still an infant, his father, as head of the family, executed a mortgage of the disputed properties in favour of the first thirteen defendants. The mortgagees sued to enforce the security and joined the plaintiff as one of the defendants. As the plaintiff was an infant, the mortgagees proposed that the father, who was himself a defendant in his capacity as mortgagor, should be appointed guardian ad litem. The usual notices were issued, but the father of the plaintiff refused to accept service. He subsequently entered appearance on his own behalf but did not accept the office of guardian of his infant son. The result was that the infant was not represented in the suit and there was an ex parte decree against him on the 25th March 1903. The decree-holders sabsequently applied for execution; the properties were sold in due course and purchased by themselves on the 8th November 1905. It further appears that an application was made" on behalf of the plaintiff to have the ex parte decree set aside. This, however, was dismissed for default, and a later1 application to restore the application to set aside the ex parte decree was rejected on the 22nd July 1905. On the 9th April 1907, the plaintiff commenced the present action for declaration, that the decree was fraudulent and collusive and not binding upon him.

(2.) The Courts below have dismissed the suit. The Subrodinate Judge has held that the suit was barred because the objections taken to the validity of the decree were made the foundation of the application under Section 108 to set aside the exparte decree and consequently could not be re-iterated in the present proceedings. The Subordinate Judge has also held that the plaintiff was represented in the suit by his father and consequently had no legitimate grievance. The Subordinate Judge has finally held that as the plaintiff was born after the mortgage-bond had been executed, he was bound thereby, and even if it was assumed that he was not made a party to the suit, he was bound by the decree and the consequent sale. On behalf of the plaintiff-appellant, the decision of the Subordinate Judge has been challenged substantially on three grounds, namely, first, that the suit w not barred by reason of the dismissal of the application under Section 108; secondly, that the plaintiff was not represented in the mortgage suit and, consequently, his interest in the joint family property has not been affected by the motrgage decree and the sale; and, thirdly, that, in any event, he ought to be allowed an opportunity to redeem in the present suit. In our opinion, each of these contentions is well-founded and must prevail.

(3.) In support of his view that the suit is barred by reason of the dismissal of the application under Section 108 of the Code of 1882, the Subordinate Judge places reliance upon the case of Ram Gopal v. Prasanna Kumar 2 C.L.J. 508 : 10 C.W.N. 529. But that decision is really of no assistance to the respondent. It does not affirm the proposition that the failure of an application to set aside an ex ptrte decree bars a subsequent suit for declaration that the decree is not binding upon the plaintiff on other grounds. We may point out, however, that the decision in Ram Gopal v. Prasanna Kumar 2 C.L.J. 508 : 10 C.W.N. 529 has been doubted in the case of Gulab Koer v. Badshah Bahadur 10 C.L.J. 420 at p. 429 : 13 C.W.N. 1197 : 2 Ind. Cas. 129. On the other hand, it is now well settled, by the decision of the Judicial Committee in the cases of Radha Raman Shaha v. Paran Nath Roy 28 C. 475 : 5 C.W.N. 757 and Khagendra Nath Mahata v. Pran Nath Roy 29 C. 395 : 6 C.W.N. 473 that it is open to a plaintiff, whose applications to set aside an ex parte decree under Section 108 and the sale consequent thereon under Sections 244 and 311 of the Code of 1882 have been infructuous, to maintain a suit to set aside the decree on the ground of fraud or for any other valid reason. In our opinion, the plaintiff is entitled to maintain the present suit and to invite the Court to consider whether the mortgage decree was made under circumstances which would make it valid and operative as against him.