BABU LAL Vs. RAGUNANDAN

JUDGEMENT

(1.) One application in revision, one second appeal and one appeal from the order of a Munsif, which is connected with the said application for revision and second appeal have come before us in the following circumstances. In the year 1924 Raghunandan obtained a decree against Babu Lal on a mortgage which had been executed in the year 1913. On 2 July, 1925 he obtained a final decree, but he never brought the property to sale because one Datti Lal brought a suit for a declaration that the mortgaged property belonged to him (Datti Lal)and not to the mortgagor Babu Lal, and this suit was decreed in favour of Datti Lal on 13th February 1926, On 30 August 1927 Raghunandan applied for a decree Rule 6, Order 34, Civil P.C., and obtained a decree ex parte on 22 October, 1927. Babu Lal applied for setting aside the ex parte decree and at first his application was dismissed on a technical ground. The decision of the Munsif dismissing the application was upheld in appeal by the District Judge, but set aside finally by the High Court which directed that the Munsif should consider Babu Lal's application for setting aside the ex parta decree on its merits. The Munsif held that Babu Lal had not been served with a summons and set aside the ex parte decree, and a revision against that decree (Civil Revision No. 135 of 1931) has been presented by Raghunandan and is one of the three decisions which are now before us. The Munsif on the merits of the case decided against the decree-holder and the appeal against that decision of the Munsif was transferred by us from the Court of the District Judge to be heard along with the application for revision.

(2.) Babu Lal on his part brought a regular suit to have the ex parte decree set aside on the ground that it had been obtained by fraud, but the District Judge on appeal found against him and a second appeal against that decision is the third matter which we have to decide. As to the application in revision we may say very shortly that there is no ground for a revision as required by the Civil Procedure Code. The only point argued is that the Munsif had no jurisdiction to set aside the decree on his finding that Babu Lal had not been served with a summons, in view of the fact that in the regular suit brought by Babu Lal the District Judge in appeal expressed an opinion showing that he disagreed with the view taken by the Munsif as to the service of summons. The finding of the learned District Judge has in no way affected the jurisdiction of the Munsif as all that the District Judge had to decide, and all that he did decide as is clear from his judgment was that the decree had not been obtained by fraud. It is not even inconsistent with the decision of the District Judge to hold that the summons was not actually delivered and certainly there is no question that the Munsif had no jurisdiction to make the order against which this application has been filed. We accordingly dismiss the application in revision.

(3.) In the appeal against the decision of the Munsif on the merits that the decree- holder could not succeed in an application for a personal decree under Rule 6, Order 34, Civil P.C. the appellant is met by the initial difficulty which is in our opinion insuperable that in this case there has been no sale. Rule 6, Order 34 applies only to cases where there has been a sale and where the proceeds of the sale are found to be insufficient to pay the amount due to the plaintiff. There are numerous decisions of this Court to the effect that when there has been no sale an application under Rule 6, Order 34 does not lie. We have been referred to certain decisions where although there has been a sale the sale has been subsequently nullified; in particular to a decision reported in Badal Singh V/s. Debi Saran by a Bench of which one of us was a member. In that case not only was there a decree for sale but the whole of the plaintiff's claim was satisfied by the sale proceeds, and it was only afterwards that a suit was brought by the mortgagor's grandson declaring the mortgage in the decree and its subsequent sale void. The Bench in that case held that as there had been a sale, it was possible to apply the provisions of Rule 6, Order 34, Civil P.C. We cannot consider that case to be an authority for the argument raised by the appellant in the present case. A further point was argued in the lower Court, namely, that the appellant should be held to have a remedy under Section 68(b), T.P. Act. We do not consider that this is a question which can be decided in an application under Order 34, Rule 6, Civil P.C. If the terms of that order do not apply the appellant cannot go beyond them to obtain a relief of a different nature in the present proceeding. We accordingly dismiss this appeal.