KEDAR NATH SINGH Vs. KESRI MULL

JUDGEMENT

(1.) This is an appeal against an order of a Subordinate Judge of Gaya refusing to set aside under Order 9, Rule 13 a mortgage decree which according to the appellant was ex parte against him but has been held by the learned Subordinate Judge not to be so. The suit in which the decree sought to be set aside was passed was to enforce a simple mortgage for Rs. 2,250 executed by Basudev Narayan Singh, defendant 1 of the suit, as karta of the family on 7 September 1917, and was among others against his two brothers Lal Narayan Singh and the appellant Kedar Nath Singh, who were defendants 2 and 3 in the suit. Defendant 4 was the minor son of defendant 2 and the other defendants as usual were impleaded as being interested in the mortgaged properties. By the time the suit was instituted the mortgage debt had swelled to a large amount, but only Rs. 17,000 was claimed, as the entire amount due could not be realized from the mortgaged properties. Defendant 1 did not enter appearance. Defendant 2 filed a written statement and appeared off and on, but as it appears from the order sheet was not present nor was he represented at least for some time during the trial of the suit which seems to have been mainly contested by defendants 13 to 15 who were subsequent transferees of the mortgaged properties or of some of them. Defendant 3, who is the appellant before us and seeks to have the decree set aside, was impleaded as a minor under the guardianship of defendant 1, his elder brother. As defendant 1 did not appear, a guardian ad litem was appointed for this defendant who filed a written statement. Thereafter it is not clear what steps this guardian ad litem took on behalf of defendant 3, but in the heading of the judgment his name appears as appearing for defendant 3. However, the suit proceeded to trial and a preliminary decree was passed on 30 January 1932.

(2.) The decree drawn up recites that it is inter partes against defendant 3 also. Final decree was passed on 17 February 1933. Execution was taken out on 5th December 1933 (Execution Case No. 403 of 1933). Notices were issued perhaps under Order 21, Rule 66, and one such notice was probably served upon defendant 3 Be that as it may, it appears that on 15 January 1934, he appeared in the execution case and applied for time. Thereafter, on 25 January 1934, he applied for inspection of the records of the suit, and on 24 February 1934, filed the present application for setting aside the decree which having been rejected the present appeal has been preferred. The learned Subordinate Judge found (1) that when the suit was instituted defendant 3 was a major and not a minor as described in the plaint, and though the fact of majority of defendant 3 was known or ought to have been known to the plaintiffs they described him as a minor not intentionally but perhaps inadvertently; (2) that notices were properly served upon defendants 1 and 2 and so was the notice on the guardian of defendant 3 nominated by the plaintiffs, namely defendant 1; (3) that defendant 3 must be presumed to have knowledge of the suit though not of the decree; and (4) that the application was not barred by limitation.

(3.) He has however refused to set aside the decree on the ground that it was not ex parte in form against the appellant, and therefore Order 9, Rule 13 had no application. He declined to exercise his inherent power under Section 151, Civil P. C, on the ground that there was no equity in favour of the applicant as he all along had full knowledge of the suit. He has referred to certain decisions which are to the effect that if a man, who is really a major, is sued as a minor, and he stands by and takes no steps, the decree passed in the suit is binding upon him. We are however not concerned with the question whether the decree is binding upon the appellant but whether he is entitled to have it set aside under Order 9, Rule 13. An ex parte decree though liable to be set aside is nevertheless binding as long as it is not set aside and cannot be collaterally questioned. The binding character of the decree necessitates steps for setting it aside. None of the cases relied upon by the learned Subordinate Judge lays down that the decree passed under such circumstances cannot, if a proper case be made out, be set aside.