MT FAHIMAN Vs. AWADH BEHARI LAL

JUDGEMENT

(1.) This Court had the advantage of having all the law on the subject placed before him with great care by Mr. Sinha and by Mr. Pande. The applicants are decree-holders and they complained that the final foreclosure decree passed under Order 34, Rule 3, Civil P.C., for foreclosure in favour of the plaintiff has been set aside by the trial Court without jurisdiction. This was their main ground of attack. Mr. Sinha, however, developed his argument and submitted that even if the trial Court had jurisdiction it was not properly exercised. The suit on the mortgage resulted in a preliminary decree for foreclosure in pursuance of a compromise between the parties according to which the plaintiff was held entitled to recover a certain amount of money from the defendant. The conditions were that the amount should be paid within nine months; that on such payment the property would be held to have been redeemed, and on nonpayment the property was to be foreclosed. There could not be any foreclosure without a final decree of the Court under Rule 3. As required by law the plaintiff applied under Clause (2) of that rule. That rule is to the effect that where such payment is not so made the Court shall on application made in that behalf by the plaintiff pass a decree that the defendant and all persons claiming through or under him be debarred from all rights to redeem the mortgaged property, and also, if necessary, ordering the defendant to put the plaintiff in possession of the property. There is, however, a proviso modifying the mandatory nature of the injunction to the effect that the Court may upon good cause shown, and upon such terms, if any, as it thinks fit, from time to time postpone the date fixed for such payment. I have quoted the rule fully in order to show that the defendant had an interest in making the payment when the plaintiff applied for the passing of the final decree, even though he was not prepared at that very time to pay the money decreed in the preliminary decree at once.

(2.) On application by the plaintiff the Court ordered a notice to issue to the defendant. It was not served on the defendant personally. On the date fixed for hearing the defendant did not appear, and a final decree for foreclosure was passed. In terms of that decree the property was foreclosed, and the plaintiff became owner of the property. Subsequently within the period of limitation the defendant applied to have this ex-parte decree set aside. An order setting aside the ex parte decree was passed by the Munsif of Cawnpore. This is an application in revision from that order.

(3.) The first argument on behalf of the plaintiff was that the final decree could not be termed ex parte because no notice to the defendant has been prescribed under Rule 3, Order 34, Civil P.C. It has been held by a Bench of two Judges in this Court that no notice is necessary Mahadeo Pandey V/s. Som Nath Pandey . So it is not necessary to pursue this matter further. It was not held, however, in that case that by reason of no notice being necessary a decree passed in the absence of the defendant would not be termed an ex parte decree. The proceedings between the preliminary and the final decree in a suit for foreclosure, that is, between the decree prescribed by Rule 2 and the decree prescribed by Rule 3, are held by this Court to be proceeding in suit: Ramji Lal V/s. Karan Singh [1917] 39 All. 532 and Sital Singh Vs. Baijnath Prasad A.I.R. 1922 All. 383. For that reason my opinion is that the provisions of Order 9 will attach to those proceedings. Under Rule 6 when the plaintiff alone appears, and the defendant does not appear the Court passes an ex-parte decree. Such a decree can be set aside by the Court under Rule 13, Order 9. A Full Bench of the Calcutta High Court held in Bibi Tasliman V/s. Harihar Mahto [1995] 32 Cal. 253, that a Court had inherent jurisdiction to set aside an order passed in ex-parte proceedings. This was a case where the provisions of the Transfer of Property Act applied to proceedings in mortgage suits, and an application was made to set aside an order absolute for sale. It was conceded in that case also that an order absolute for sale may be passed without any notice to the judgment-debtor. Proceedings subsequent to the preliminary decree for sale were treated prior to 1908 as proceedings in execution. No provision was made applicable to such proceedings for a rehearing. Even so, the inherent power of a Court to set aside ex-parte proceedings was recognized. In my opinion, after Act 5 of 1908 the case is much stronger because the proceedings subsequent to a preliminary decree are proceedings in suit and a decree passed in the absence of the defendant must be considered an ex-parte decree, and there does not appear to be anything in the Code to prevent the provisions of Rule 13, Order 9 attaching to such a decree. The same view was taken by the Bombay High Court in a case tried by the Presidency Court of Small Causes where the proceedings under Chap. 7 of the Presidency Small Cause Courts Act (No. 15 of 1882) were admittedly not proceedings in a suit. The learned Judges who heard the reference were of opinion that the Court of Small Causes had an inherent power to set aside an ex-parte order. In the Allahabad case already cited of Mahadeo Pande V/s. Som Nath , the two learned Judges who delivered judgment found nothing in the case of Bibi Tasliman inconsistent with the view they had taken that a sentence was not necessary to be issued to the defendant under Rule 3.