Document Fragment View

Matching Fragments

Mookerjee and Teunon, JJ.

1. This appeal is directed against an order of refusal of the Court below to set aside ail ex parte decree. On the 27th September, 1907, the present respondent, who had taken an assignment of a mortgage bond, commenced an action to enforce the security against the mortgagors, who formed a family of five brothers. Of these, the first three entered appearance in the suit and disputed the claim of the plaintiff. There was no appearance on behalf of the other two defendants. On the 24th July, 1908, a decree upon contest was made against the first three defendants, and an ex parte decree against the other two defendants. On the 26th June, 1909, two applications were made, one by each of these defendants to set aside the ex parte decree. On the 20th April, 1910, the Subordinate Judge dismissed both the applications. He held that the summons was not duly served, but that as the applicants knew about the suit, when it was actively defended by their eldest brother, the applications were barred by limitation. One of the brothers alone, by name Kumud Nath Roy Chowdhury, has preferred this appeal, and on his behalf the decision of the Subordinate Judge has been assailed on two grounds, namely, first, that the period of limitation applicable to, the case is that provided by Article 164 of the Limitation Act of 1887, which was in force when the ex parte decree was made, and that as no steps have yet been taken to execute any process for enforcement of the judgment, no question of limitation arises; and, secondly, that even if Article 164 of the Limitation Act of 1908, which came into force after the ex parte decree had been made, and before the application to set it aside had been presented, be held to be applicable, there is no evidence to show that the petitioner had knowledge of the ex parte decree more than thirty days before the application was made. These points have been strenuously contested on behalf of the respondent decree-holder, and it has further been urged on his behalf, first, that the summons was duly served upon the petitioner, and, secondly, that as an appeal had been presented by the contesting defendants against the decree, the Subordinate Judge had no jurisdiction thereafter to entertain any application to set aside that decree at the instance of even the defendant against whom it had been made ex parte. The questions, therefore, which emerge for consideration from the arguments addressed to us on both sides, are, first, was summons duly served upon the appellant, the petitioner in the Court below? Secondly, had the Court below jurisdiction to entertain the application at the instance of the appellant after an appeal had been preferred against the decree by the contesting defendants? And, thirdly, was the application barred by limitation?

3. In so far as the second point is concerned, it has been argued by the learned vakil for the respondent that the Subordinate Judge had no jurisdiction to entertain the application to set aside the ex parte decree, because the contesting defendants had preferred an appeal to this Court against the decree. In support of this view, he lias placed reliance upon the cases of Dhonai Sardar v. Tarak Rath Chowdhury (1910) 2 C.L.J. 53 and Sankara Bhatta v. Subraya Bhatta (1907) I.L.R. 30 Mad. 535. In answer to this argument, it has been contended on behalf of the appellant that the cases mentioned are distinguishable, inasmuch as the t application to set aside the ex parte decree in these cases, was made to the Original Court after the decree had been affirmed on appeal, and that the case now before us is completely covered by the decision in Sarat Chandra Dhal v. Damodar Manna (1908) 12 C.W.N. 885 which was affirmed on appeal under Section 15 of the Letters Patent Damodar Manna v. Sarat Chandra Dhal (1909) 13 C.W.N. 846. In our opinion, the objection by the respondent must be overruled. It is worthy of note, that this point was not urged in the Court below, and there is no legal evidence on the present record to show that an appeal against the decree has been preferred to this Court by the contesting defendants. We do not desire, however, to rest our decision upon what may be deemed a technical ground. We shall assume that the appeal was lodged in this Court on the 15th April, 1909, and though presented out of time, was directed to be registered, on the 7th May, 1909. That appeal, however, is still pending in this Court, and the decree of the Original Court is still in full force and operation; it has not been superseded by any decree on appeal or merged therein. Under these circumstances, it is difficult to appreciate how on principle the view can be maintained, that the jurisdiction of the Original Court to entertain an application to set aside the decree, in so far as it is ex parte has been taken away. It has been broadly contended, however, by the learned vakil for the respondent, upon the authority of expressions to be found in the judgments in Dhanai Sardar v. Tarak Nath Chowdhury (1910) 12 C.L.J. 53, Ramanadhan Chetty v. Narayanan Chetty (1904) I.L.R. 27 Mad. 602 and Sankara Bhatta v. Subraya Bhatta (1907) I.L.R. 30 Mad. 535 that the immediate effect of the presentation of an appeal to a Superior Court against the decree of a Subordinate Court, is to destroy the jurisdiction of the latter Court to deal with the judgment in controversy in any way. We are not prepared to accept this proposition as well founded on principle, and it is, as a matter of fact, opposed to the decision of the House of Lords in Mellish v. Richardson (1832) 1 Cl. & Fin. 224 in which it was ruled, that where the Court would otherwise have the authority to amend the judgment, it may be done after an appeal has been taken. This view is entirely inconsistent with the theory that the mere presentation of an appeal puts it beyond the power of the Original Court to deal in any manner with the judgment under appeal. The position is obviously different after the adjudication of the appeal, when the original judgment has been superseded by the judgment of the Court of Appeal : Brij Narain v. Tejbal (1910) I.L.R. 32 All. 295 : L.R. 37 I.A. 70. The view we take has been adopted also in a long series of decisions in the American Courts, amongst which reference may be made to Exp. Henderson (1887) 4 Southern 284 and Texas Railway Company v. Walker (1905) 87 S.W. 194. We must, therefore, adhere to the principle which underlies the decision of this Court in Damodar Manna v. Sarat Chandra Dhal (1909) 13 C.W.N. 846 and overrule the contention of the respondent, that the Original Court could not entertain the application to set aside the ex parte decree presented by the appellant, merely because the contesting defendants had preferred an appeal to this Court.