Patna High Court
Shaikh Muhammad Jamil vs Musammat Bibi Tufailan on 29 July, 1921
Equivalent citations: 63IND. CAS.47
JUDGMENT Das, J.
1. This litigation is the result of the slovenly manner in which Mr. Thakur Dayal, the Munsif, did his work in connection with Miscellaneous Case No. 22 of 1915. It appears that the respondent before us was the plaintiff in Sent Suit No. 1482 of 1915, She obtained an ex parte decree as against the defendant, No. 1 on the 6th January 1915. That decree was drawn of, sealed and signed on the 28th January 1915.
2. On the same day an application was presented by the defendant No. 1 under Order IX, Rule 13, for setting aside the ex parte decree passed on the 6th January 1915. The learned Munsif recorded an order on that date to the following effect: "Applicant to file process fee, etc., at once." It appears that the signature of the Pleader of the plaintiff was taken to this order, but no process fee was in fact paid by the defendant, with this result that notice of this application was not served on the plaintiff as required by law, The learned Munsif took up the case on the 2 the February 1915 and is the absence of the plaintiff, set aside the ex parte decree which had been obtained by the plaintiff against the defendant on the 6th January 1915. The learned Munsif then proceeded to dee.1 with the original suit. On the 15th April 1915 he took up the original suit and on that date dismissed the that for the plaintiffs default and directed the plaintiff to pay costs to the defendant. The decedent thereafter executed the decree for costs which he had obtained by the Order dated the 15th April 1915 as against the plaintiff, and in execution of that decree, which as for Rs. 7-8-0, caused the properly of the plaintiff, which has been valued by the lower Appellate Court at over Rs. 400, to he sold for Rs. 180. The plaintiff has now brought the present suit for confirmation of possession, or in the alternative for recovery of possession, of this property from the defendant.
3. In my opinion the view taken by the learned Judge in the Court below is entirely, correct. He has taken the view that the sale did not operate to confer any title upon the defendant, inasmuch as' the plaintiff never knew anything about the proceedings which terminated in the sale of her property. The learned Vakil on behalf of the appellant contends that, however erroneous the order of the learned Munsif might have been in setting aside the ex parte decree and then in proceeding with the plaintiff's suit in the absence of the plaintiff, that order could not be considered a nullity inasmuch as the Court had jurisdiction to pass a wrong order as well as a right order and that, therefore, the only remedy available to the plaintiff was to apply for review of the judgment of the learned Munsif. In my opinion the suit is not a suit for setting aside the decree passed by the learned Judge. The question is a simple one. The plaintiff's property has been sold by virtue of an order in execution of a decree passed by the Court. The plaintiff was never aware of any of the proceedings which culminated in the order of the Court.
4. The harried District Judge has found that the entire execution proceedings were fraudulent from start to finish. The question is, is the plaintiff in this suit entitled to get a declaration in his favour that he is entitled to this property. Order IX, Rule 14, declares that no decree shall be set aside on any such application, that is to say, on any application made under Order IX, Rule 13, unless notice thereof has been served on the opposite party. It is admitted Chat notice was not in fact served on the opposite party. It h also admitted that though the learned Munsif directed the application to file talbana, it was in fact not filed, with the result that notice could not be served on the opposite party. But it is urged before us that as notice was served on the Pleader of the plaintiff, there was in fact a service of notice on the party. I am unable to accept this view. Order III, Rule 5, no doubt, provides that any process served on the Pleader of any party shall be presumed to be duly communicated and made known to the party whom the Pleader represents. But there was no order in this case for service of the notice upon the Pleader and the suit having name to an end and the decree passed in favour of the plaintiff, I am unable to hold that the Pleader continued to represent his client for the purpose of an application which was made: under Order IX, Rule 13, for setting aside the ex parte decree. I am of opinion that this appeal should be dismissed with costs.
Adami J.
4. I agree.