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HIGH COURT OF CALCUTTA
Sankar Prasad Mitra, Salil Kumar Datta
KESHAB CHANDRA DATTA - Appellant
Versus
BALLYGUNGE ESTATE PVT. LTD - Respondent
Civil Revn. Case 3080 Of 1971
Decided On : JANUARY 06, 1972
ORDER 9 RULE 13 - SETTING ASIDE EX PARTE DECREE - SERVICE OF SUMMONS AND NOTICE OF EXECUTION - FRAUDULENT SUPPRESSION - SATISFACTION OF DECREE - RESTITUTION - MAIN LEGAL POINT : AN APPLICATION UNDER ORDER 9, RULE 13 OF THE CODE OF CIVIL PROCEDURE, 1908, IS MAINTAINABLE EVEN WHEN AN EX PARTE DECREE HAS BEEN SATISFIED BY EXECUTION, AND THE PRINCIPLES OF RESTITUTION UNDER SECTION 144 OF THE CODE WOULD BE ATTRACTED IF THE EX PARTE DECREE IS SET ASIDE.
Fact of the Case:
THE DEFENDANT IN AN EX PARTE DECREE SUED FOR SPECIFIC PERFORMANCE OF CONTRACT FOR TRANSFER OF CINEMA AND ALTERNATIVELY FOR A DECREE FOR RS. 1,12,314.83, FILED AN APPLICATION UNDER ORDER 9, RULE 13 OF THE CODE OF CIVIL PROCEDURE, 1908, TO SET ASIDE THE EX PARTE DECREE ON THE GROUND OF FRAUDULENT SUPPRESSION OF SUMMONS AND NOTICE OF EXECUTION CASE. THE TRIAL COURT SET ASIDE THE EX PARTE DECREE, HOLDING THAT NEITHER THE SUMMONS NOR THE NOTICE WAS SERVED ON THE DEFENDANT.
Finding of the Court:
THE HIGH COURT HELD THAT THE TRIAL COURT HAD JURISDICTION TO MAKE THE ORDER SETTING ASIDE THE EX PARTE DECREE AND THAT IT HAD NOT ACTED IN EXCESS OF ITS JURISDICTION OR WITH MATERIAL IRREGULARITIES OR COMMITTED ANY BREACH OF PROCEDURE. THEREFORE, THE HIGH COURT COULD NOT INTERFERE WITH THE ORDER UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908.
Issues: 1. WHETHER AN APPLICATION UNDER ORDER 9, RULE 13 OF THE CODE OF CIVIL PROCEDURE, 1908, IS MAINTAINABLE WHEN AN EX PARTE DECREE HAS BEEN SATISFIED BY EXECUTION? 2. WHETHER THE PRINCIPLES OF RESTITUTION UNDER SECTION 144 OF THE CODE OF CIVIL PROCEDURE, 1908, WOULD BE ATTRACTED IF THE EX PARTE DECREE IS SET ASIDE?
Ratio Decidendi: 1. AN APPLICATION UNDER ORDER 9, RULE 13 OF THE CODE OF CIVIL PROCEDURE, 1908, IS MAINTAINABLE EVEN WHEN AN EX PARTE DECREE HAS BEEN SATISFIED BY EXECUTION. 2. THE PRINCIPLES OF RESTITUTION UNDER SECTION 144 OF THE CODE OF CIVIL PROCEDURE, 1908, WOULD BE ATTRACTED IF THE EX PARTE DECREE IS SET ASIDE.
Final Decision: THE HIGH COURT DISCHARGED THE RULE AND VACATED THE INTERIM ORDER, DIRECTING THE PETITIONER TO PAY THE OPPOSITE PARTY THE COSTS OF THE APPLICATION.
Certainly. Based on the provided legal document, the key points are as follows:
An application under Order 9, Rule 13 of the Civil Procedure Code is maintainable even after an ex parte decree has been satisfied through execution. This means that the defendant can seek to set aside the decree if there was fraudulent suppression or irregularity in service of summons or notice, regardless of whether the decree has been executed and satisfied [judgement_subject].
The principles of restitution under Section 144 of the Civil Procedure Code are applicable when an ex parte decree is set aside. This entails restoring the parties to their original positions before the decree was passed, including the possibility of recovering properties or benefits obtained under the erroneous decree [ratio_decidendi] (!) .
The jurisdiction of the court to set aside an ex parte decree, and the validity of an application under Order 9, Rule 13, depends on whether the court had jurisdiction and whether proper procedure was followed. The court's review is limited to jurisdictional errors or procedural irregularities that materially affect the decision [ratio_decidendi].
Satisfaction of an ex parte decree does not bar an application under Order 9, Rule 13. Even after the decree has been executed and satisfied, the defendant retains the right to challenge the decree if there was fraud or irregularity in service or proceedings [ratio_decidendi].
When a decree is set aside, the principles of restitution require that any benefits or properties obtained under the decree be returned or restored to the original party, maintaining the fairness and integrity of judicial proceedings [ratio_decidendi].
The application of Section 144 of the Civil Procedure Code in cases where a decree has been reversed or set aside under Order 9, Rule 13, supports the entitlement of the affected party to restitution, including the undoing of transactions or transfers made under the erroneous decree [ratio_decidendi].
The court emphasizes that errors of fact or law, unless they pertain to jurisdiction, do not justify interference in revision proceedings. The court's revisional jurisdiction is limited to examining procedural irregularities or jurisdictional issues, not the correctness of factual or legal conclusions [ratio_decidendi].
The procedural provisions explicitly allow a defendant to apply under Order 9, Rule 13, if they were prevented from appearing or if service was not duly effected, even if the decree has already been satisfied [ratio_decidendi].
The legal framework supports that allegations of fraudulent suppression or irregularities in service are sufficient grounds for an application under Order 9, Rule 13, and do not necessarily require a separate suit to challenge the decree [ratio_decidendi].
Overall, the legal principles affirm that setting aside an ex parte decree, even after satisfaction, is permissible when justified by procedural irregularities or fraud, with restitution principles ensuring the restoration of parties to their rightful positions [ratio_decidendi].
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( 1 ) THIS Rule has been obtained against order No. 42 dated the 23rd October, 1971 in Miscellaneous Case No. 28 of 1971 (arising out of Title Suit No. 58 of 1970) passed by the Second Subordinate Judge, Alipore. It appears that on the 17th August, 1970, the plaintiff instituted a suit for specific performance of contract for transfer of Aleya Cinema to the plaintiff and, alternatively, for a decree for Rs. 1,12,314. 83 and for other reliefs. On November 25, 1970 an ex parte decree was passed in the Suit. The defendant, by this decree, was directed to execute and register a Deed of Transfer in respect of the said Cinema. The decree was sealed and signed on the 5th December. 1970. On January 27, 1971 notice of the Title Execution Case No. 3 of 1971 was stated to have been served on the defendant. Since the defendant did not appear, on the 27th February, 1971, the Court executed an Indenture of Conveyance. On the 1st March, 1971 the conveyance was registered.
( 2 ) ON April 13, 1971 the defendant made an application under Order 9. Rule 13 of the Code on the ground of fraudulent suppression of summons. A Miscellaneous Case was started, being Miscellaneous Case No. 28 of 1971. The learned Trial Judge recorded the evidence of witnesses of both the parties and ultimately came to the conclusion that neither the summons nor the notice of the execution case was served on the defendant. The learned Subordinate Judge set aside, in the premises, the ex parte decree by his order under challenge.
( 3 ) MR. Sankardas Banerjee, learned counsel for the petitioner before us, opened his case by inviting us to consider the depositions of the various witnesses who were examined by the learned Subordinate Judge. Mr. Banerjee wanted us to hold that the evidence adduced by these witnesses had not been properly appredated. We pointed out to him that in the exercise of our revisional jurisdiction we could not go into these questions. It may be that the Subordinate Judge is in error in his appraisal of the evidence adduced before him. But unless the error is a jurisdictional error, either of law or of fact, while exercising our powers under Section 115 of the Code, we cannot interfere with the order passed by him. In this connection it would be enough to refer to one of the earlier decisions of the Supreme Court as also to its latest decision. In the case of Keshardeo Chamria v. Radha Kishan Chamria, it has been pointed out that as the order of the Subordinate Judge was one that he had jurisdiction to make and as he had, in making that order, neither acted in excess of his jurisdiction nor with material irregularities nor committed any breach of procedure, the High Court, acted in excess of its revisional jurisdiction under Section 115 of the Code and the order of remand and all proceedings taken subsequent to that order were illegal. The Supreme Court categorically reiterated that Section 115 applied to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it and if a subordinate Court had jurisdiction to make the order it had made and had not acted in breach of any provision of law or committed any error of procedure which was material and might have affected the ultimate decision, the High Court had no power to interfere however profoundly it might differ from the conclusions of that court on questions of fact or law.
( 4 ) THE latest decision of the Supreme Court to which our attention has been drawn, is the decision in D. L. F. Housing and Construction Co. (P.) Ltd. v. Sarup Singh. In paragraph 8 at page 2327 it has been observed that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The Supreme Court says further that the words "illegally" and "with material irregularity" a
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