GAJRAJ MATI TIWARIN Vs. SWAMI NATH RAI

JUDGEMENT

(1.) This is an appeal under Order XLIII, Rule 1(d), of the Code of, Civil Procedure, from an order rejecting an application made under Rule 13 of Order IX of the Code to set aside a decree passed ex parte.

(2.) The circumstances under which the appeal has arisen may be briefly recapitulated, before proceeding to deal with the point arising in the appeal. On the 6th of October, 1899, Nand Lal, Rai Misra and others instituted a suit in the court of the Subordinate Judge of Gorakhpur for the sale of property to realize the sum of Rs. 39,468 on foot of a mortgage, dated the 20th of June, 1891, alleged to have been executed by defendants of the first set named Krishan Nath Tiwari, Govind Nath Tiwari and Balbhadar Nath Tiwari, and also by the defendant of the second set named Musammat Gajraj Mati Tiwarin, who is the mother of the defendants of the first set. From the recitals in the deed of mortgage and from the judgment in appeal of this Court it appears that the property mortgaged stood in the name of Musammat Gajraj Mati Tiwarin. Some decrees for money had been passed against her, in execution of which the property in dispute had been attached. The defendants of the first set had brought a suit to obtain a declaration that the property which stood in the name of the lady was really their property. A decree was given to them by the court of first instance which was reversed in appeal by this Court. The defendants of the first set intended to carry the case up in appeal to the Privy Council when by a compromise between the parties, the idea of appealing in the Privy Council was given up, and the mortgage in suit was executed under the terms of the compromise. There were other defendants to the present suit, with whom we are not concerned in this appeal. The suit was contested by defendants of the first set. and by one Bishambhar Nath Tiwari. The defendants of the first set admitted the execution of the deed of mortgage in suit. They, however, raised a number of pleas in defence which formed the subject of adjudication, both by this Court and the court below. With these we are not concerned in this appeal. Musammat Gajraj Mati Tiwarin did not appear in the suit, which proceeded ex parte against her. On the 30th of June, 1900, the learned Subordinate Judge of Gorakhpur gave a decree for the realization of a sum of Rs. 26,916 with costs and future interest by sale of the property mortgaged against all the defendants to the suit Against the said decree, the defendants of the first set and Bishambhar Nath Tiwari (viz., all the four persons who had defended the suit), preferred an appeal to this Court). The plaintiffs alone were made respondents to the appeal. Neither Musammat Gajraj Mati Tiwarin, nor the other defendants to the suit were parties to this appeal, which was registered as F.A. No. 305 of 1900. The appeal came on for hearing before a Division Bench of this Court presided over by the Honourable the Chief Justice, Sir John Stanley, and Mr. Justice Burkitt, who on the 2nd of December, 1903, decreed the appeal in part by reducing the rate of interest and allowed certain objections preferred under Section 561 of the old Code of Civil Procedure by the plaintiffs respondents, thereby increasing the amount of the sum decreed by Rs. 4,000 principal and interest accruing due thereon. The decree made in the appeal runs in the following terms: It is ordered and decreed that this appeal and the objection under Section 561 of the Code of Civil Procedure filed by the plaintiffs respondents be allowed in part, and that, in modification of the decree of the Subordinate Judge of Gorakhpur, it is decreed and hereby declared that on the 30th day of May, 1904, a sum of Rs. 34,654-2-3 will be payable to the plaintiffs respondents, viz. Rs. 13,200 for principal and Rs. 19,720-12-9 interest thereon due on the mortgage, dated the 20th of June, 1891, at the rate of 12 per cent, per annum up to the date of the decree, and it is hereby ordered that upon the defendants appellants paying to the plaintiffs respondents or into court on the 30th of May, 1904, aforesaid, the said sum of Rs. 34,654-2-3 with future interest at the rate of 6 per cent, per annum from the date of the decree, the plaintiff respondent shall deliver to the defendants appellants or such persons as they appoint all documents in their possession or power relating to the property specified. But if such payment is not made on or before the 30th of May, 1904, then it is ordered that the said property or a sufficient part thereof be sold, etc., etc.

(3.) It is noticeable that the order to pay the amount is addressed to the defendants appellants, It is they who are to pay the amount and redeem the property, and in default of payment by them it is to be sold as ordered. I have already noted that Musammat Gajraj Mati Tiwarin was no party to the decree, so far as this decree is concerned her very existence is ignored. The plaintiffs in due course applied for an order absolute for sale under Section 89 of Act IV of 1882, and having obtained it put the decree in execution, and brought to sale the mortgaged property. The sale was duly confirmed, and the purchasers (who were the decree-holders themselves) were put in possession. On 3rd of February, 1915, Musammat Gajraj Mati Tiwarin filed a petition in the court of the Subordinate Judge of Gorakhpur under Rule 13 of Order IX of the Code to set aside the decree of the 30th of June, 1900, on the various grounds set forth in the said petition. She alleged in that petition that she had do notice of the suit, that it was not properly served on her, and that it was for the first time on the 27th of January, 1915, when she received a summons to give evidence, that she came to know of the decree and what had transpired in execution thereof. The decree-holders filed a reply to the said petition on the 20th of March, 1915. The court below, without trying the application on the merits, has rejected it on the sole ground that as the final decree in the case was made by this Court on appeal on the 2nd of December, 1903, he had no jurisdiction to set aside his own decree against the applicant. Musammat Gajraj Mati Tiwarin has preferred this appeal against the said order on the ground that the decree made by this Court on the 2nd of December, 1903, was not a decree to which she was a party. The only decree passed against her was the decree of the court of first instance, dated the 30th of June, 1900, which alone she is interested in getting set aside. The fact that some other of the defendants preferred an appeal to this Court), to which she was not a party, and in which this Court, therefore, could not and in fact did not deal with her rights, does not preclude this defendant from making the present application. Rule 13 of Order IX of the Code of Civil Procedure enacts that when a decree is passed ex parte against a defendant) such defendant "may apply to the court by which the decree was passed for an order to set it aside," on certain grounds set out in the said rule. The court, if satisfied that such grounds are well founded, may make an order to set aside the decree as against him. There is a proviso added to the rule, under which, where the decree is of such a nature that it cannot be set aside as against such defendants only, it may be set aside against all or any of the other defendants also. It is clear from this rule that an application under it can be made only by a person against whom a decree has been made, and that such application can be made only to the court which passed the decree. The plaintiffs respondents have, however, urged that the only decree capable of execution, and in fact the only final decree made in this case, is the decree made by this Court in appeal, into which the decree of the court of first instance must be taken in law to have merged, and that Musammat Gajraj Mati Tiwarin, though not named as a party to the decree of this Court, must be deemed in law to have been a party against whom also this Court must be taken to have made the decree. The application, therefore, should have been made to this Court to set aside the decree of December 2, 1903, and the court below has, therefore, rightly rejected the application made to it. The learned Counsel for both the parties have referred to numerous cases in course of their able arguments. In view of the great importance of the question involved in the appeal, as also in view of the fact that there has been considerable divergence of views in the various High Courts in India upon the point, we took time to consider our judgment.