Allahabad High Court
Parmarth Prakash vs Union Of India on 23 March, 1998
Equivalent citations: 1998(4)AWC771
Author: R.N. Ray
Bench: R.N. Ray
JUDGMENT R.N. Ray, J.
1. This revision is directed against the order dated 12.10.1983 passed in a proceeding under Order IX, Rule 13, C.P.C. which arose out of Suit No. 200 of 1979.
2. The suit was filed for declaration that family arrangement entered into between the co-owners of the property is to stand, so long the partition suit is not filed and there is no decree for partition. The suit was contested by the defendant No. 3 while the defendant Nos. 5, 7 and 8 did not contest the suit and suit was decreed partly. The judgment and decree was passed on merits on 24.1.1993. Thereafter within time, the defendant Nos. 5, 7 and 8 filed an application under Order IX, Rule 13, C.P.C. for setting aside the judgment and order on the ground that no notice was served upon them and behind their back, the decree was obtained by the plaintiff which be set aside. It was contested by the plaintiff opposite parties.
3. In Order IX, Rule 13, C.P.C., it has been mentioned as under :
"In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside ; and if he satisfies the Court that the summons was not duty (sic duly) served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment Into Court or otherwise as it thinks fit. and shall appoint a day for proceeding with the suit :
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also :
Provided farther that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim."
4. So it is clear that the decree can be set aside against a person, who alleges that he was precluded to come to the Court for cogent reasons or without serving a notice decree was obtained. But in the event, the Court finds the decree of such a nature that without setting aside the entire decree, no effective relief can be given to the person, who claimed that he was prejudiced by the decree and he was prevented for sufficient reason could not come to the Court and held when the hearing was fixed or no notice was served upon him, the Court may set aside the entire decree provided it was not decided on merit.
5. In the instant case, the judgment and decree dated 24.1.83 was on merit. It has been contended by the learned counsel for the revisionist that the entire decree cannot be set aside if it was found by the Court that the absent defendants had no actual knowledge of the suit, in that event, he can set aside the same against that defendant, provided it was not decided on merits. Without such decision is made on merits, the proper recourse is to file an appeal against the same and not filing an application under Order IX, Rule 13, C.P.C. In this connection, he referred a decision in 1969 All LJ 804 p. 808. It has been held by this Court that any date when the suit has been decided on merits, a person who files an application under Order IX, Rule 13, C.P.C. is not entitled to get the decree set aside against the other defendants and this judgment is based on another ruling referred to that judgment itself.
6. In the instant matter, I find that the judgment was passed on merits, so he is not entitled to get the relief against the opposite party in a proceeding under Order IX, Rule 13, C.P.C. Moreover it has been held by the learned Court below that the defendant No. 3 was made opposite party No. 4 in this revision and it has been held that he had knowledge of the matter because the person contesting the case were living with the other defendants in the same house. Be that as it may. I am not going into the facts as to whether he had knowledge or not but since it is the question of law that it cannot be set aside against the other defendants in a proceeding under Order IX, Rule 13 but of course he can agitate his grievance by filing an appeal and not an application under Order IX, Rule 13. C.P.C.
7. As such, the revision stands allowed. The impugned order dated 12.10.1993 and 11.4.1983 as passed by the learned Court below is set aside. I do not order as to costs because it is a pure question of law.
8. The judgment is pronounced in the open Court immediately after conclusion of the arguments in presence of learned counsel for both the sides.