SURENDRA KUMAR SINGH Vs. MUKUND LAL SAHU

JUDGEMENT

(1.) This petition arises out of a proceeding under Order 9, Rule 13, Civil P.C. started by the opposite party for setting aside an ex parte decree (final) for foreclosure passed in Title Suit No. 90/43 in the Court of the 1 Munsif, Kishanganj. The application for setting aside the ex parte decree was made by two out of three defendants in the suit. Non-joinder of one of the defendants in the application for setting aside the ex parte decree amounted to the, decree having obtained finality against him. The result of setting aside the ex parte decree at the instance of two defendants out of three amounted to setting aside the decree which had been made final against one of the defendants. However, this anomaly is not before me for consideration.

(2.) The application was based on the ground that after the preliminary decree they had received no notice of an application by the plaintiff for making the decree absolute, and there fore, it was not competent for the Court to pass a decree for foreclosure. The learned lower appellate Court came to a finding that there was no service of notice, but he found that service of notice was essential before a final decree could be passed. On this finding he set aside the ex parte decree. The present revision is directed against that order.

(3.) Two points have been urged before me, (1) that Order 9, Rule 13 is inapplicable to a proceeding for making a decree final and (2) that under the law no service of notice is essential before the decree can be made final. Both these points have been dealt with and decided by a Division Bench of this Court in the case of Birendra Prasad Suhul V/s. Srimati Kiranbala Mittra by Harries C.J. and Brough J. by their judgment dated 2 November, 1942, in a case in which the facts were on all fours with the present case. The learned Judges held that no notice is necessary to be given to the defendant about the plaintiff's application for making a preliminary decree final. They further held that even though a proceeding for making the decree final is a proceeding in a suit, yet Section 141, Civil P.C. does not apply thereto. Therefore, a final decree passed ex parte cannot be set aside under Order 9, Rule 13. As I am bound by this decision irrespective of my personal opinion about these points, I have to follow the same and that disposes of this civil revision.