DEVJI PADAMSEY Vs. THOMMADRA ERIKALAPPA

JUDGEMENT

(1.) Maganlal Padamsey filed a suit No. 1958 of 1920 against one Thommadra Erikalappa. Thommadra filed a written statement and counter-claim not only against Maganlal but against three other persons including Devji Padamsey, the present plaintiff-appellant. Maganlal failed to obey the order made in the suit to file his affidavit of documents, whereupon Thommadra applied for an order that in default of the affidavit the plaintiff's suit should be dismissed, and that he should be held entitled to an ex parte decree on his counter-claim not only against Maganlal but against the other defendants to the counter-claim who were not in default. That order unfortunately was made, but it was obviously a wrong order, which the defendants other than Maganlal to the counter claim were entitled to treat as a nullity, and all the proceedings under that order, the putting down the suit for an ex parts decree against these defendants to the counter-claim, and the passing of a decree against them ex parte were absolute nullities against these defendants including Devji Padamsey, who has now brought this suit to set aside the ex parte decree passed against him.

(2.) The defendant relies on the fact that there was no concealment of the true facts, because, when the case came on for hearing, the Chamber order was put in as Ex. F. and the Judge was entitled to presume that was a proper order passed against all the defendants to the counter-claim. But the defendant to this suit Thommadra cannot now rely upon that order under which he was enabled to obtain a decree against the defendants other than Maganlal, and it would certainly be a fraud on the Court, that he obtained a decree against the present plaintiff Devji Padamsey in such a way. It is clear than that the fraud on the Court lay in obtaining the order against the present plaintiff and his other co-defendants to the counter-claim, which Thommadra must or certainly ought to . have known, could not in any way be binding on Devji and his co-defendants. It is unfortunate that Devji was absent when counsel was instructed on the last day available to ask that the ex parte decree should be set aside. Counsel moved late in the day and the Judge directed that the application should be adjourned and renewed the next day on affidavit. As Devji was still absent, apparently the application could not be renewed, and Devji had to file the present suit. As a matter of fact there was no necessity for an affidavit, the defect in the proceedings was clear on the record, It would certainly be a very extraordinary thing if Devji should be liable on a decree passed against him in such circumstances, without any remedy being open to him to get the decree set aside.

(3.) We must allow the appeal and set aside the decree passed against this defendant with costs throughout.