HAR KISHAN DAS Vs. BHURA MAL

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Aligarh refusing the application of the appellants under Section 108 of the Civil P. C. to sot aside an ex parte decree which was passed against them on the 14 of June, 1900. The suit was brought by the plaintiffs for money alleged to be due to them on a balance of accounts. The defendants are one Bhura Mal, his daughter- in-law Musam-mat Gayatri, the widow of Ganga Prasad, a deceased son of Bhura Mal, who is a minor, and Jamna Das, the minor son of Bhura Mal. Bhura Mal was admittedly duly served with summons in the suit, and also, as has been proved, with a notice under the provisions of Rule 128 of the Court's Rules calling upon him to state whether he was willing to act as guardian ad litem for the minor defendants. It appears that he paid no attention to this notice, and that the Court omitted to pass any order appointing him or any other person to be such guardian, as required by Section 443 of the Civil Procedure Code. Without passing any order, either formal or informal, appointing any such guardian, the Court fixed the 14th of June, 1900, for the hearing. On that date there was no appearance for any of the defendants, and an ex parte decree was thereupon passed against all the defendants for the amount alleged by the plaintiffs to be due. Proceedings were taken to execute the decree, and then, for the first time, the minor defendants became aware that a suit bad been instituted and a decree passed against them. An application was made by the defendants, in the case of Musammat Gayatri through one Radha Ballabh; and in the case of Jumna Das through Bhura Mal, to have the ex parte decree set aside. The Subordinate Judge refused the application, apparently holding that Bhura Mal was the only appointed guardian ad litem of the minor defendants for the purposes of the suit, inasmuch as he had been served with a notice calling upon him to state whether he was willing to act as such guardian and had not declined to act. Where a defendant to a suit is a minor, the Court is bound, under the provisions of Section 443 of the Code, on being satisfied of the fact of such minority, to appoint a proper person to be guardian for the purposes of the suit for such minor, to put in the defence for him, and generally to act on his behalf in the conduct of the case. In the appointment of a guardian the Court ought to be satisfied, not merely that the proposed guardian is a fit and proper person to act as such, but also that he has no interest directly or indirectly adverse to the minor. An active duty in this respect is thus imposed on the Court. It is said that the fact that Bhura Mal did not object to his being appointed guardian when this notice calling upon him to state whether he was willing to act as such was served upon him, was equivalent to a consent on his part to act, and justified the Court in regarding him as guardian. But the question is not whether the proposed guardian was willing to act, but whether the Court was satisfied upon proper materials that, he was a proper person to appoint, and being so satisfied, did appoint him within the meaning of Section 443. It is clear to my mind that the Court did not, either formally or informally, appoint Bhura Mal guardian ad litem, of either of the minor defendants, and consequently that the case must be dealt with as if no guardian ad litem had been appointed for them. A Court cannot be too jealous in observing the requirements of the law in regard to infants, and in seeing that in suits affecting them their interests are properly safeguarded. It is unfortunate that in this instance the Court entirely disregarded the requirements of the section to which I have referred, and, neglectful of the obvious and simple duty thereby enjoined upon it, passed a decree against the minor defendants. I may observe that Musammat Gayatri is the widow of a deceased son of Bhura Mai, and could not as such have been under any liability to the plaintiffs in respect of the alleged debt. For these reasons the decree clearly must, I think, be set aside as against the minor defendants.

(2.) A more difficult question, however, remains for determination, and that is, whether our order should be limited to setting aside the decree as against the minors merely, or should go further and set it aside in its entirety as well against Bhura Mal as against the minor defendants. This question depends upon the true construction to be placed upon Section 108 of the Civil P. C.. This section runs as follows: "In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit." It has been contended on behalf of the respondents that the direction given in the section, namely, that the Court shall set aside the decree, does not mean that the Court shall set aside the decree in its entirety against all the defendants, but only as against a party who may not have been duly served, or a party who was prevented by any sufficient cause from appearing when the suit was called on for hearing. If this had been the intention of the Legislature the addition of a few words to the section would have made the intention perfectly plain: the insertion after the words the decree "in the latter portion of the section of some such words as" as against such defendants "would have rendered the meaning plain, and I cannot but think that words such as these would have been introduced if such had been the intention. Again, at the end of the section the Court is directed, after passing an order to set aside the decree, to appoint a day for proceeding with the suit. Here again there is an indication that it was the entire decree which was in the contemplation of the Legislature, and not the decree so far as it affected one or more only of the defendants, for the direction is to proceed with the suit, not to proceed with the suit as against the defendant who had succeeded in having the decree set aside. It is a well-known rule of construction that nothing is to be added to, or taken from, a statute cm less adequate grounds are found, either in the cause of the enactment, or in the context, or in the consequences which would result from the literal interpretation, to justify the inference that the Legislature intended something which it had omitted to express. I am not aware that there are any such grounds in the present case. On the contrary, it seems to me that expediency requires that the entire decree shall be sot aside. Serious complications might arise if the decree were allowed to stand as against one defendant, and yet be get aside as against co-defendants. For example, in a suit for a declaration that a plaintiff is entitled to joint possession of immovable property with two defendants A and B, A is served with the summons and B is not served. Neither defendant appears to defend the suit, and a decree is passed against both defendants. B makes an application to the Court to have the decree set aside, and it is set aside accordingly as against him, but not as against his co-defendant. Upon the hearing B establishes that the plaintiff has no title whatever to the property. There would in such a case be two absolutely inconsistent decrees: which is to prevail? Again, let me take the case of a promissory note made by two persons A and B jointly; B has paid the amount of the note; notwithstanding this the payee sues both parties on the note. A alone is served with summons, but does not appear to defend the action. B has not been served with summons, and in consequence has the decree set aside as against him, and on the trial of the suit establishes the fact of payment. In such a case A would be liable under the decree obtained against him to satisfy a note which the Court found had already been satisfied by B, Other instances of like anomalies might readily be multiplied. There does not appear to be any authority upon this question in this Court; but it has recently come up for decision in several cases in the Calcutta High Court. In the case of Mahomed Hamidulla V/s. Tohurennissa Bibi (1897) I.L.R. 25 Calc. 155 it was held that the words "the decree" in Section 108 of the Code mean the whole decree in the suit. In that case a suit had been brought against two sets of defendants upon a promissory note which had been made by two persons, one of whom died before the suit was brought. The suit was brought against the surviving maker of the note, and the heirs of the other deceased maker. Two of these heirs were pardanashin ladies, upon whom summons had not been duly served. A decree was passed against all. The defendants against whom the decree had been made ex parte applied to the Munsif of Alipore under Section 108 of the Code to have the decree set aside, and it was set aside as against all the defendants. At the instance of the plaintiff, a rule was granted to show cause why the order of the Munsif should not be set aside, which was heard before Maclean, C.J. and Banerji, J. These learned Judges held that upon the true construction of Section 108 of the Code, the order of the Munsif was correct, setting aside the decree in its entirety. This is a stronger case than the case before us, inasmuch as in it some of the defendants appeared and defended the suit, whereas in this case before us none of the defendants defended the suit. The ruling in this case was followed by another Bench of the Calcutta High Court in the case of Ajodhya Pershad Singh v. Sheo Pershad Suhu (1900) 5 C.W.N. 58. In that case a suit was brought to enforce a mortgage against three persons, one of whom was a minor, and represented by his father-in-law as guardian. None of the defendants appeared, and the suit was decreed ex pdrta. An order was subsequently made making the decree absolute, and in execution of the decree the property was sold. The minor defendant, represented by one Fateh Bahadur as next friend, made an application to have the ex parte decree set aside under Section 108 of the Code, and a similar application was made by one of the other defendants. The Subordinate Judge of Muzaffarpur, without taking any evidence, was of opinion that, so far as the minor was concerned, the non-appearance in the suit of the guardian was sufficient cause within the meaning of Section 108, and that the ex parte decree ought to be set aside, and that the decree being set aside against the minor defendant it should being aside against the other defendants. Against this order the plaintiff made an application and obtained a rule to show cause why the order of the Subordinate Judge should not be set aside. The learned Judges, Ghose and Steven, JJ., concurred in the decision in Mahomed Hamidulla V/s. Tohurennissa Bibi to which I have referred, and held that the decree was properly set aside by the Subordinate Judge as against all the defendants. There appears to me to be great weight in the reasons assigned for their judgment by the learned Chief Justice, Sir Francis Maclean, and Mr. Justice Banerji, in the case which I have quoted, but it is not necessary for me, and I therefore abstain from expressing any opinion upon a case, such as the case before them, in which one or more of several co-defendants has appeared and defended the suit, while in the case of another defendant a decree has been passed ex parte. A conflicting decision upon this point is to be found in the case of Manaku kom Pedru V/s. Sitaram Atmaram Vagh (1893) I.L.R. 18 Bom. 142 in which Sir Charles Sargent and Bayley, J., held that the setting aside of an ex parte decree on an application by a co-defendant against whom it had been passed ex parte did not reopen the case against the defendants who were present and who conducted the defence where there is a common cause of action against all the defendants. The judgment of the learned Chief Justice in that case is remarkable for its brevity and may be quoted verbatim. It is as follows: "Having regard to the language of Secs.106 and 108 of the Civil Procedure Code (Act XIV of 1882) the question must be answered in the negative." Now it has been contended on behalf of the respondents that great difficulties will arise if the contention advanced on the part of the appellants is allowed to prevail. For example, the case was put in which an ex parte decree had been executed by a sale of property to third parties. It is suggested that on the setting aside of the decree there would be serious difficulty experienced in adjusting the rights of the parties, including the auction purchaser, and injustice might be worked. It seems to me, however, that, having regard to the provisions of Art. 164 of the Indian Limitation Act, which prescribes that an application for an order to set aside a judgment ex parte shall be made within 30 days from the date of executing any process for enforcing the judgment, largely minimises the possibility of any such difficulty arising, inasmuch as in the short period of 30 days it is improbable, if not impossible, that a sale could be carried out. For the foregoing reasons I would allow this appeal, set aside the order of the Subordinate Judge and also the ex parte decree passed against all the defendants, and direct that the suit be restored to its original place on the register, and be tried according to law. The plaintiffs are to blame, in that they sued minors and did not take the precaution of seeing that a guardian ad litem was appointed for them. They cannot therefore complain. The appellants, other than Bhura Mal, are, I think, entitled to their costs of this appeal. Bhura Mal ought to abide his own costs.

(3.) It may be well to point out to the learned Subordinate Judge that before proceeding with the disposal of the suit a guardian ad litem must be appointed by the Court for the minor defendants pursuant to Section 443 of the Code of Civil Procedure. I desire to add that I express no opinion on a case in which a decree passed against several defendants consists in reality of separate decrees as against each; I merely hold that where a decree is one and indivisible, as is the decree in this case, it must be set aside in its entirety. Burkitt, J.