A court has inherent jurisdiction to set aside an ex parte final decree if there has been a gross mistake or abuse of the process of the court.

Ramaswami, J.

1. This rule is directed against an order of the Subordinate Judge of Ranchi dated 15th July 1949 setting aside a final decree passed ex parts in exercise of his inherent jurisdiction.

2. On 18th August 1942 applicant Mt. Balmati Kumari brought the suit asking for partition of 1/5th share of certain immovable properties. The suit was dismissed by the trial Judge and an appeal was preferred before the High Court. On 1st March 1946 the parties agreed to a compromise and the High Court disposed of the appeal informs thereof. According to the compromise (1) the case was to be remitted to the learned Subordinate Judge for ascertaining the net income of the family properties regarding which the suit was brought, (2) Mt. Balmati Kuer shall be entitled to l/8th of the total net income of the family properties as ascertained by the learned Subordinate Judge in satisfaction of her claim in the suit and in lieu of maintenance, (9) the above share of the income shall be paid by the respondent annually to the appellant and shall be a charge on the properties.

3. After the remand the learned Subordinate Judge issued a writ to a pleader-commissioner who submitted his report on 28th January 1948. As no objections were filed the Subordinate Judge accepted the report and ordered that a final decree should be prepared. On 30th July 1948 Rameshwar Pandey, curator of defendant 4, applied to the Court asking that the final decree should be set aside on the ground that defendant 1 was not properly represented before the commissioner, that the latter calculated mesne profits for six years in direct contravention of the consent order passed by the High Court and that there had been an abuse of the process of the Court. After hearing the parties the learned Subordinate Judge allowed the application and set aside the final decree under Sec.151, Civil P. C. on the ground that there had been a gross mistake on the part of the pleader-commissioner and there had occurred miscarriage of justice.

4. In support of this rule Mr. L. K. Choudhuri contended that the learned Subordinate Judge had no jurisdiction to set aside the ex parte final decree in exercise of his inherent powers beyond the period of limitation pre-scribed by the statute. In support of his argument learned counsel cited Ajodhya Mahton V/s. Mt. Phul Kuer, 1 Pat. 277: (A. I. R. (9) 1922 pat. 479) in which a Bench of this Court held that an ex parte final decree could not be set aside under Order 9, Rule 13, on the ground that the application for the final decree was barred by time; that if a definite period of limitation has been provided by law within which action must be taken a Court is not entitled to extend such period by purporting to act under Sec.151. But the facts of this case must be distinguished for there was no allegation that there has been any mistake or abuse of the process of the Court, Learned counsel also referred to Surendra Kumar Singh V/s. Mukund Lal Sahu, A. I. R. (36) 1949 Pat. 68, in which Ray J. observed that the inherent power of Court is intended to be exercised only for granting relief against abuse of process of Court and not for spinning out a new procedure for a particular suit or proceeding, that such a power cannot be exercised for setting aside an ex parte final decree for foreclosure as it would necessarily involve loss of a vested right in plaintiff, It should again be noticed that in this case Ray J, clearly found that there was no abuse of process of Court and it was only for granting relief against such abuse that inherent power is given.

5. In the present case it is manifest that the pleader commissioner made a gross mistake in not ascertaining the total net income according to the terms of the compromise decree which the High Court recorded. The pleader commissioner commenced his report by stating that he had been appointed "to ascertain mesne profits of the suit properties for the period directed in the decree." At p. 5 of his repo