RAGHUNANDAN CHAUBE Vs. BHUWAL TEWARI

JUDGEMENT

(1.) The circumstances which give rise to this appeal and the application in revision are as follows: On 25 April 1927, the Munsif of Deoria passed a decree against certain persons in a suit for contribution based on a mortgage. In the decree the liability of each defendant was specified. The decree as against Raghunandan Ghaube was ex parte. The other defendants appealed against the decision, and their appeal was dismissed by the Additional Subordinate Judge on 5 January 1928. In that appeal Raghunandan Chaube was made a party, but it has been found definitely by the Court below that he was not served with any notice. The plaintiff applied for a final decree on 6 June 1928, and Raghunandan Chaube applied on 26 October 1928 in the Court of the Munsif of Deoria to get the ex parte decree of the Munsif's Court set aside. The Munsif dismissed the application on the ground that no such application could be entertained by him. His decision is dated 5 March 1929. On 8 April 1929, Raghunandan Chaube appealed against this decision to the Additional Subordinate Judge, and on the same day he put in an application in the Subordinate Judge's Court for rehearing the appeal against the original decision of the Munsif. The learned Additional Subordinate Judge dismissed the application on the ground that it was made too late, and he dismissed the appeal on the ground that the decision of the Munsif was correct. The position is therefore that this Raghunandan Chaube has never obtained any decision as to whether he had notice of the suit which was decreed against him ex parte. Both Courts have dismissed his claim to be heard on a technical ground.

(2.) I shall deal first with the application in revision. The view taken by both the Courts below is that, as there had been an appeal against the ex parte decree, the only Court which could take action in the matter was the appellate Court. For this general proposition there is authority both of this High Court and of the other High Courts. But all the cases, which are directly in point are those in which there has been a joint decree and where an appeal by one of those persons against whom the decree has been passed is in substance an appeal for all. In making this application in the Court of the Munsif Raghunandan Chaube relied upon a decision of the Calcutta High Court in the case of Brij Lal Singh V/s. Mahadeo Prasad [1913] 12 I.C. 669. In that case a suit was brought on a mortgage and a decree was passed ex parte against some of the mortgagors. In the decree only the share of the absent defendants was ordered to be sold, but the contesting defendants were made personally liable for the unsatisfied balance of the mortgage debt. Against this part of the decision the plaintiff appealed, and the contesting defendants made cross-objections. In the appeal the absent defendants were impleaded, yet the Calcutta High Court, held that as no relief was claimed in the appeal against the absent defendants there was still a subsisting ex parte decree against them over which the Subordinate Judge who was the trial Court had control, and he had jurisdiction to entertain an application by the absent defendants to set aside the decree.

(3.) It has not been shown to me that this ruling has ever been dissented from by the Allahabad High Court. It was considered by a Bench of this Court in Gajraj Mati Tewarin V/s. Swami Nath Rai [1917] 39 All. 13 and it was followed in so far as was necessary for the purpose of that case, namely, to decide that persons who are not made parties to an appeal are not precluded from applying for setting aside the ex parte decree against them. It appears to me that the present case more nearly resembles the case reported in Brij Lal Singh V/s. Mahadeo Prasad [1913] 12 I.C. 669, than any of the other cases which have been cited. The appeal preferred by the contesting defendants related only to their own specific liability and had nothing to do with the liability imposed by the trial Court on the absent defendant. Moreover it is difficult to distinguish between persons who are not parties to an appeal and persons who have been impleaded in the appeal but have never received any notice, and are ignorant of the fact that any appeal has been preferred. As their Lordships of the Calcutta High Court observed: In cases of this description we must look rather to the substance than to the form of the proceeding.