Madras High Court
Corporation Bank vs E.W. Stevensors And Ors. on 9 September, 1992
Equivalent citations: (1993)1MLJ446
JUDGMENT Mishra, J.
1. A learned single Judge of this Court has set aside an ex parte decree against the defendants/respondents in C.S. No. 432 of 1981. He has noted the fact that the decree was passed pursuant to an order made expane in the case for the reason that the counsel for the defendants fell ill and hence he was not able to attend the hearing on the date fixed in the case. The learned Judge has said;
To substantiate the claim that Mr. N.V. Balasubramanian was ill on 29.6.1992, a certificate given by Dr. Gopal Ramanthan, M.D., FCCP has also been filed. In view of the above, I am clear that sufficient reason is given for setting aside the ex parte decree.
2. Order 9, Rule 13, Code of Civil Procedure, stated that 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 duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court would 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.
3. On facts, as found by the learned single Judge the defendants have not appeared through counsel on account of the sudden illness of the counsel and thus for that reason the defendants were prevented by a sufficient cause from appearing when the suit was called on for hearing. Learned Counsel for the appellant, however, has referred to the proviso under Order 9, Rule 13, C.P.C., and drawn our attention to the order of the learned single Judge in this behalf wherein it is said that even if a good cause is shown for setting aside the exparte decree, such order can enure only to the benefit of that defendant who applied for setting aside the ex pane decree. According to the learned Counsel, the first defendant alone was represented in the proceeding for setting aside the exparte decree in the sense that although the application was purported to have been filed on behalf of all defendants only a representative of the first defendant filed the affidavit as to the cause for setting aside the ex pane decree. Learned single Judge has, however, said as follows:
The learned Counsel for the plaintiff would submit that even if it is taken that good cause is shown for setting aside the exparte decree it can enure only to the benefit of first defendant alone. The learned Counsel for the petitioner points out that Mr. N.V. Balasubramaniam was appearing for all the defendants and the prayer in the application is for setting aside the ex pane decree in its entirety passed on 29.6.1992 and acceptable reason has been given for the absence of the defendants' advocate on that date. In view of the above, I am unable to accept the submission made by the learned Counsel for the plaintiff/respondent.
The fact being that Mr. Balasubramaniam represented all the respondents (defendants in the suit) and his absence affected the common cause of the respondents and the application for setting aside was filed on behalf of all the respondents, it is not possible merely on the basis of the affidavit having been filed by a representative of the first defendant that the application for setting aside the ex pane decree was only on behalf of the first defendant. Apart from the above, we have seen with the assistance of the learned Counsel for the appellant the facts of the case leading to the money decree which revealed that the first defendant is alleged to be the principal debtor and the second and third defendants are the sureties. The effect of setting aside the decree, against the first defendant alone will mean that a decree made effective against all the defendants jointly will stand annulled in so far as the principal debtor is concerned but shall bind the sureties and the creditor-decree holder thus shall satisfy the decree.
4. The first proviso to Order 9, Rule 13 reads as follows:
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.
On the facts as above, in our opinion, it has been indeed a case in which even if the decree has to be set aside at the instance of only one of the defendants, it must be set aside against all of them. The law in this behalf has been stated in one of the earliest judgments of this Court in Meenakshi Sundaram Pillai v. Chandrakasa Naicker A.I.R. 1927 Mad. 550 : 1011.C 98 : 1927 M.W.N. 294, in these words:
Under the proviso to Rule 13, Order 9, where a decree is of such a nature that it cannot be set aside as against the applying defendant only, it may be set aside as against all or any of the defendants also. It appears to me that the decree in this case is of this indivisible character, because it is for the possession of a house, which itself is indivisible; so that if the share of one of defendants is excluded, delivery will, in effect, be impossible.
This view is expressed in a case under the Code of Civil Procedure, Act VIII of 1859 by this Court in Panji Achan v. Marutha Veera Kavundan 22 M.L.J. 543, in these words:
The extent to which the decree must be set aside will depend upon the circumstances of each particular case. On what principle then is the court to act in deciding how far any particular decree is to be set aside? There can I think, be no doubt that the object of the section is that a more successful applicant should be put in exactly the same position as if no decree had been passed in the suit, and the decree, therefore, must be set aside so far as is necessary, to achieve this object, and no further.
As I read Section 108, C.P.C., it prima facie means that the decree, so far as it gives any relief to the plaintiff against the defendant who is able to establish that he was prevented from sufficient cause from appearing at the time of hearing, is to be set aside, and not against those defendants in the suit who have no good cause to make for non-appearance or have not chosen to take any action. But it may happen that the decree, from its nature, must, if set aside, necessarily exempt all the defendants from liability as is the case here with respect to so much of the decree as directs the amount in question to be paid out of the Dewaswom property. In such case the scope of Section 108, C.P.C., as I understand it, is no doubt enlarged, but that is because it cannot be helped; but if one were to go further and to hold that in all cases where there is one cause of action against all the defendants, or where there is a common defence, the court acting under this section has the power to set aside the decree so far as it affects the defendants other than the applicant, it would, in my opinion, be putting too great a strain on the language of the Legislature.
5. Learned Counsel for the appellant, however, has placed reliance upon the judgments of a Division of the Bombay High Court in Hiralal v. Sitaram , and of a learned single Judge of the same court in Vasant v. Tukaram A.I.R. 1960 Bom. 485. In the former it is said:
It may be pointed out that under the old Code, when an application for setting aside an ex parte decree was made by any defendant, the provision was that the Court shall make an order setting aside the decree. The Code was amended and in the amended Code the language used in Order 9, Rule 13, is "the court shall make an order setting aside the decree as against him." Therefore, the principle accepted by the Legislature in Order 9, Rule 13, is that the ex parte decree shall ordinarily be set aside only against the party who applies to set aside the ex parte decree. I use the word "ordinarily", because there is a proviso to Order 9, Rule 13 and the proviso provides 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 defendant also. It is clear that the proviso emphasises the nature of the decree. What the court has got to consider is whether the decree which it is setting aside at the instance of one defendant is of such a nature that it cannot be set aside as against that defendant only. Therefore, the infirmity must be in the decree itself.
The obvious illustration would be a partition decree. If one of the defendants applied to set aside a partition decree, the Court could not set aside such decree against that defendant only because it would be impossible to work out a partition decree in the absence of any of the parties. Now, can it be said that in the decree which was passed in this suit, there is anything which makes it impossible for the court or makes it difficult for the court to set it aside as against defendant No. 1 only. The decree is only a money decree passed against both defendants Nos. 1 and 2. The decree can be worked out and can be executed even though the decree against defendant No. 2 stands and is set aside only against defendant No. 1. There is nothing in the nature of this money decree which the court has passed which renders it difficult for the court to set aside only guae one of the defendants who are parties to the suit. Mr. Bhabba asked us to consider what would happen after the decree is set aside and the Court dismisses the suit against defendant No. 1. In our opinion, that is not a consideration that can weigh with the Court when it considers the proviso to Order 9, Rule 13. The right to set aside the ex parte decree is conferred expressly only upon the party who applies to set aside the ex pane decree. As against the parties who have not applied, the plaintiff has obtained a valuable right, he has obtained a decree against those defendants, and that valuable right can only be defeated provided the Court itself finds a difficulty in setting aside the ex parte decree only against the defendant who has applied to do so. But there is no right whatever in the party who has not applied to set aside the ex pane decree to have that decree set aside. Mr. Bhabba's client had the right to apply to set aside ex parte decree. He did not choose to exercise that right; he submitted to the decree. It is not therefore for him to appeal against any injustice that might be caused by reason of the fact that a suit against defendant No. 1 may be dismissed on the same cause of action. He himself has no right conferred upon him by the Code. It is only the difficulty that the court might experience which has led the Legislature to enact the proviso.
We are not very much impressed by the argument of inconsistent decrees being on the record of this Court. Take the instance of a decree being passed on an admission. One defendant may admit the claim, the other defendant may hot, and it would be open to the court to pass a decree against defendant No. 1 on an admission and the court may proceed to try the suit as against defendant No. 2. This may happen although the plaint is based on the same cause of action and in respect of the same transaction. If the plaintiffs suit fails against defendant No. 2, it may be said that there are inconsistent decrees on the record of the court, because there is a decree against defendant No. 1 on an admission and a dismissal of the suit as against defendant No. 2, although the transaction was the same and the cause of action was the same. In the illustration I have given, it is a case of a decree being passed against one defendant on an admission. In the present case there is a decree against defendant No. 2 by reason of the fact that he did not appear and defend the suit. It may be that a inconsistent decree may be passed in respect of defendant No. 1 because he has been given the right by the Code to defend his suit on merits. Such a right has not been given to defendant No. 2.
In the latter it is said:
It is contended by the learned Counsel for the applicant that although the lower court held that the order passed by its predecessor was illegal it did not set aside the order because it thought that it had no power to review the order, and that if this Court holds that the order could have been reviewed the original order passed should be set aside. But this Court cannot set aside the order passed unless it agrees with the view taken by the lower court that the original order was contrary to the proviso to Order 9, Rule 13, C.P.C.
The lower court thought that the order passed by its predecessor was contrary to law because (i) the decree in question is one and indivisible, (ii) the decree is likely to result in two inconsistent decrees if the decree is not set aside against defendants 2 and 3, and (iii) the decree proceeds on the grounds common to defendants 2 and 3. In addition to these grounds it is also urged by the learned Counsel for the applicants that in the interests of justice the whole decree should be reopened and the decree should be set aside against both defendants 2 and 3 and not merely against one of them, namely, defendant No. 3 who had applied under Order 9, rule 13, to have the exparte decree set aside. Learned Counsel for the applicant has relied on Khag-esh Chandra v. Chandra Kanta A.I.R. 1954 Assam 183 (F.B.), Gopala Chetty v. Subbier I.L.R. 26 Mad. 604, Bhura Mal v. Har Kishan Das I.L.R. 24 All. 383, (F.B.), Mohamed Hamidulla v. Tehurennissa Bibi I.L.R. 25 Cal. 155, Munshi Ram v. Malava Ram A.I.R. 1917 Lal 194 and Meenakshi Sundaram Pillai v. Chandrakasa Naicker A.I.R. 1927 Mad. 550 : 1011.C. 98 : 1927 M.W.M 294.
6. It is unnecessary to consider the Calcutta case at any great length because that was a decision under the old C.P.C. and the view taken by the Chief Justice of the Calcutta High Court was that under Section 108 of the old Code if a decree was to be set aside the whole decree should be set aside against all the defendants and not against some only of the defendants.
7. The Assam case deals with a different set of circumstances, because in that case the suit had been decreed exparte against one defendant and dismissed, after contest, against another defendant. It was held by the majority of the Full Bench of the Assam High Court that Order 9, Rule 13 and the provisos to it do not confer any jurisdiction upon the Court to reverse a decree dismissing the suit of the plaintiff as against some of the defendants. In the instant case the exparte decree had been passed against both the defendants 2 and 3 and not in favour of one of them. The case of the Assam High Court has therefore no application to the instant case. But the view has been expressed that if the decree is joint and indivisible or if there is a possibility of conflicting decrees, then the whole decree should be set aside under the proviso to Order 9, Rule 13 in Meenakshi Sundaram Pillai v. Chandrakasa Naicker A.I.R. 1927 Mad. 550 : 101 I.C. 98 : 1927M.W.N. 294, in a suit filed for delivery of a house and mesne profits against defendants 2 and 3 and defendant No. 1 who had purchased the house in execution of a decree against the undivided brother of defendants 2 and 3 these two defendants were ex parte and the plaintiff compromised with the first defendant, with the result that the decree was passed against all the defendants for possession and for mesne profits. The second defendant who had been ex parte, got the decree set aside under Order 9, Rule 13. Plaintiff filed petition saying that if the ex parte decree is set aside against the second defendant, it should also be set aside against all the defendants. It was held that the decree was of an indivisible character because it was for the possession of the house which itself was indivisible, and if the share of one of the defendants is excluded, delivery in effect was impossible. The Madras High Court therefore set aside the ex parte decree against all the defendants although the petition to do so had been filed by the plaintiff. This case is an authority for the proposition that the decree was joint and indivisible and if the setting aside of the decree against one of the defendants only would result in an impossibility of execution, then the whole decree should be set aside. In Munshi Ram v. Malava Ram A.I.R. 1917 Lah. 194, a decree had been passed ex pane against the principal debtor and his surety-after the ex pane decree against the principal debtor was set aside under Order 9, Rule 13, it was held that the Judge was in error in setting aside the decree against the principal debtor without setting it aside against the surety.
8. If we look at the wording of the proviso to Order 9, Rule 13, it provides that where the decree is of such a nature that it cannot be set aside as against such defendant only, the decree may be set aside against all or any of the other defendants also. The proviso contemplates cases where the decree is of such a nature that it cannot be set aside against one defendant only. Such cases are, for instance, a decree for possession of a house in the joint possession of persons, a partition decree, and a decree for joint possession of property in the joint possession of two or more persons. It is the nature of the decree that is the determining factor and not the reasons behind the decree. Even if the defends of two defendants is common and even if the decree proceeds on a ground common to all the defendants, the ultimate decree should not be set aside against all the defendants unless it is of such a nature that it cannot be set aside as against one defendant only. Two decrees may be inconsistent in the sense that the grounds given are inconsistent. A decree against two or more defendants may be a decree for a certain amount of money as damages for breach of a contract, and if the decree against one of the defendants is set aside under Order 9, Rule 13, and ultimately the suit is dismissed against such a defendant on the ground that he did not commit a breach of contract, then though the grounds may be inconsistent, the original decree is not of such a nature that it cannot be set aside as against one defendant only. Generally in the case of a money decree the application of the proviso to Order 9, Rule 13, C.P.C. is not attracted. In Hiralal v. Sitaram , which was a case of money lent to two defendants carrying on business under a partnership name and in which an ex parte decree passed against defendant. Nos. 1 and 2 and in favour of the plaintiff, was set aside against defendant No. 1 under Order 9, Rule 13, it was held that the application of defendant No. 2 for setting aside the ex parte decree against him also under the proviso to Order 9, Rule 13, should be rejected because the money decree was not an indivisible decree and the argument of inconsistent decree being possible was rejected. For the application of the proviso to Order 9, Rule 13, it is not sufficient that there was possibility of inconsistent decrees, but what is necessary is that the Original decree, which is being set aside at the instance of only one defendant is of such a nature that it cannot be set aside as against that defendant only, if there is such an infirmity in the original decree, then only action would be taken under the proviso.
6. We do not propose, however, to say whether any of the two Bombay cases go in support of the contention of the learned Counsel for the appellant, because we do not notice any departure in the statement of the principles of law by the learned Judges of the Bombay High Court, as found in the two earlier judgments of this Court. It has to depend upon the facts of each case whether to set aside the decree only in so far as the case of the defendant who applied for setting aside the decree is concerned or even in case of other defendants as well and in that the court shall mainly be guided by the principles of equity and good conscience. On the facts of the present case as we have found the learned single Judge has committed no error, there is no merit in the appeal. The appeal is accordingly dismissed.