RASAN CHETTIAR Vs. RANGAYAN CHETTIAR

JUDGEMENT

(1.) The facts out of which this appeal arises are as follows: The plaintiff obtained a preliminary decree in a mortgage suit on 23 March 1928. Three months time was given for the payment of the mortgage debt. An application was put in by the plaintiff on 28 June 1928 and a final decree was passed. Notice of this application was not sent to defendant 2 in the suit. The appellant who is defendant 2 put in a petition on 19 October 1928 to have the ex parte final decree set aside and to stay execution of the proceedings on the ground of an adjustment made between himself and the plaintiff some time during April 1928,. The Court passed an order as follows: I think therefore that the grounds for setting aside the final decree are not strong. But I think I may in the interest of justice give the petitioner a chance of proving the so called adjustment, if he shows his bona fides to satisfy the decree by paying half the decree amount in two weeks.

(2.) Defendant 2 not having paid the amount on the date fixed, his petition was dismissed. Against this order of dismissal, he has appealed.

(3.) The learned advocate for the appellant takes as his main ground that notice is required for the passing of the final decree and that if such a notice is not given, the application to set aside the final decree falls under Order 9, Rule 13, Civil P. C, and the Court has no option in such a case but to set aside the decree. He also urges that an adjustment out of Court can be pleaded against the passing of the final decree in a suit for sale. The rulings as to whether a notice is or is not necessary have been conflicting mainly due to a difference of opinion as to whether an application for a final decree is a proceeding in execution or not. Turning to the Code itself in Order 34, Rule 5 we find nothing which directs a notice to the other side on an application for final decree. The following cases have been relied on to show that notice is required: Bibi Tasliman V/s. Harihar Mahto [1905] 32 Cal. 253, Kanakasundaram Pillai v. Somasundaram Pillai , Rajendra Lal Sur V/s. Atal Bihari Sur [1917] 44 Cal. 454 Bachu Singh v. Bicharam Sahu [1909] 10 C.L.J. 91 and Maruthiswamiyar V/s. Subramania Ayyar . The other side quotes Krishna Ayyar V/s. Muthuswami Ayyar [1902] 25 Mad. 506, Pandu Prabhu V/s. Juje Lobo [1904] 27 Mad. 46 and Mahomed Taki Raza V/s. W.A. Thomas [1906] 4 C.L.J. 317, and Mahadeo Pandey V/s. Somnath Pandey . There is a similar conflict of decisions as to whether Order 9, Rule 13, applies to an application made to set aside a final decree in a suit of this sort. Turning to the authorities quoted for the appellant, it may be observed that Bibi Tasliman V/s. Harihar Mahto [1905] 32 Cal. 253 merely lays down: that a Court has inherent power to deal with the application to set aside the order made ex parte and can set it aside upon a proper case being substantiated.