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HIGH COURT OF CALCUTTA
Harries, Das, Banerjee
ABED ALI - Appellant
Versus
PRAFULLA KUMAR SEN - Respondent
Full Bench Ref. In Appeal 16 Of 1951
Decided On : MARCH 12, 1951
EX PARTE DECREE - SETTING ASIDE - LIMITATION - ARTICLE 164 OF THE LIMITATION ACT, 1908 - APPLICABILITY - ORDER 9, RULE 13 OF THE CODE OF CIVIL PROCEDURE, 1908 - APPLICABILITY TO ORIGINAL SIDE OF HIGH COURT - WHETHER ORDER 9, RULE 13 OF THE CODE OF CIVIL PROCEDURE, 1908 IS INAPPLICABLE TO THE ORIGINAL SIDE OF THE HIGH COURT - WHETHER ARTICLE 164 OF THE LIMITATION ACT, 1908 IS APPLICABLE TO APPLICATIONS MADE ON THE ORIGINAL SIDE - WHETHER THE CASE OF 'S. N. BANERJEE V. H. S. SUHRAWARDY', 55 CAL 473, IS CORRECTLY DECIDED.
Fact of the Case:
The defendant-appellant, a resident of Kulgachia in the District of Howrah, carried on the business of manufacturing mosquito netting. He was sued by the plaintiff-respondent for a sum of Rs. 2,872/- being money advanced by the plaintiff against deliveries of cloth which the defendant had failed to deliver. An ex parte decree was passed against the defendant on July 12, 1950. The defendant failed to appear at the hearing and it was alleged that his failure to appear was due to the fact that no writ of summons was served upon him. On September 29, 1950, the Taxing Officer on the Original Side of the High Court wrote to the defendant informing him of the ex parte decree. The defendant filed an application on November 29, 1950, to set aside the ex parte decree. The plaintiff-respondent contended that the application was out of time and therefore barred by limitation. The defendant-appellant contended that Order 9, Rule 13 of the Code of Civil Procedure had no application to the Original Side of the High Court and that the application was an application invoking the Court to exercise its inherent jurisdiction to set aside the ex parte decree.
Finding of the Court:
The Court held that Order 9, Rule 13 of the Code of Civil Procedure applied to applications made on the Original Side to set aside ex parte decrees and that Article 164 of the Limitation Act governed such applications. The Court further held that the case of 'S. N. BANERJEE V. H. S. SUHRAWARDY', 55 CAL 473, was wrongly decided in so far as it held that Order 9, Rule 13 of the Code of Civil Procedure had no application to proceedings to set aside ex parte decrees on the Original Side.
Issues: 1. Whether Order 9, Rule 13 of the Code of Civil Procedure applies to applications made on the Original Side to set aside ex parte decrees? 2. Whether applications to set aside ex parte decrees on the Original Side are governed by Article 164 of the Limitation Act? 3. Whether the case of 'S. N. BANERJEE V. H. S. SUHRAWARDY', 55 CAL 473, is correctly decided?
Ratio Decidendi: 1. Order 9, Rule 13 of the Code of Civil Procedure is not made inapplicable to the Original Side of the High Court by Order 49, Rule 3 of the Code of Civil Procedure. 2. The rules of procedure governing service of process and appearance of parties on the Original Side of the High Court are contained in Ch. 8 of the Rules of the Original Side. These rules differ from the rules laid down by the Code of Civil Procedure, but they only amend or abrogate certain of the rules of Order 9. Order 9, Rule 13 has not been made inapplicable to the Original Side by these rules. 3. There is no rule in Ch. 8 or indeed anywhere in the Original Side Rules relating to applications for setting aside ex parte decrees. The Original Side Rules are silent on the matter and as Order 9, Rule 13 has not been made inapplicable to the Original Side by Order 49, Rule 3, there is no reason why Order 9, Rule 13 should not govern applications made to set aside ex parte decrees on the Original Side.
Final Decision: The Court answered the questions referred to the Full Bench as follows: Questions Nos. 1 and 2 are answered in the affirmative. In answer to question No. 3 we hold that the case of 'S. N. BANERJEE V. H. S. SUHRAWARDY', 32 Cal W N 10 is wrongly decided in so far as it holds that Order 9, Rule 13 of the Code of Civil Procedure has no application to proceedings to set aside ex parte decrees on the Original Side.
( 1 ) THIS is a Reference made to a Full Bench by a Bench of this Court in an appeal from an order of a single Judge sitting on the Original Side. The Bench referring the case pointed out that there was a conflict of authority and that' however the case was decided, another Bench decision of this Court would have to be, dissented from. That being so the referring Bench was of opinion that it had no alternative but to refer the case to a Full Bench.
( 2 ) TO appreciate, the points involved it will be necessary shortly to set out the facts which gave rise to this litigation.
( 3 ) THE defendant-appellant resides in a village called Kulgachia in the District of Howrah, the village being about twenty-eight miles away from Calcutta. He carried on the business of manufacturing mosquito netting and eventually one Maniruddin who had purchased, netting from the defendant-appellant introduced the latter to the plaintiff Prafulla Kumar Sen Gupta. The , plaintiff ordered quantities of. mosquito netting from the defendant and made payments in advance. The allegation was that the defendant had failed to supply a quantity of netting which had already been paid for and on January 6, 1950 the plaintiff filed a suit on the Original Side of this Court claiming a sum of Rs. 2,872/- being money advanced by the plaintiff against deliveries of cloth which the defendant had failed to deliver.
( 4 ) ON July 12, 1950 an ex parte decree was made by a single Judge sitting on the Original Side for Rs. 2,872/- together with costs. The defendant failed to appear at the hearing and it is said that his failure to appear was due to the fact that no writ of summons was served upon him.
( 5 ) ON September 29, 1950 the Taxing Officer on the Original Side of this Court wrote to the defendant informing him inter alia of this ex parte decree which had been passed against him. The receipt of this letter is admitted and therefore there can be no doubt that within a day or two of September 29, 1950 the defendant-appellant well knew that a decree had been passed against him.
( 6 ) THE Court was in vacation throughout the latter part of September and the whole of the month of October and did not reopen until November 20. No application was made on behalf of the defendant-appellant to set aside this ex parte decree at the reopening of the Court, but art application was filed on 29-11-50. This application eventually came before Sarkar J. and a point was taken on behalf of the plaintiff respondent that the application was out of time and therefore barred by limitation. The plaintiff-respondent contended that the application to set aside this ex parte decree was made under Order 9, Rule 13 of the Code of Civil Procedure and that the period of limitation applicable to such an application was thirty days by reason of Article 164 of the Limitation Act.
( 7 ) ON behalf of the defendant-appellant it was contended that Order 9, Rule 13 had no application to the Original Side of this Court and that the application was an application invoking the Court to exercise its inherent jurisdiction to set aside this ex parte decree. As the application was an application made to this Court to exercise its inherent jurisdiction it was contended that Article 164 of the Limitation Act could not apply, nor indeed could any article of the Limitation Act be made applicable. That being so it was contended that though the application for restoration was made beyond thirty days, nevertheless the Court could entertain the application.
( 8 ) THAT the application to set aside the ex parte decree was made beyond thirty days is beyond all question. As I have already stated the defendant-appellant well knew of this decree certainly by October 1 or 2, 1950. By Article 164 the defendant-appellant had thirty days from the date of the decree or from the date of his knowledge of the decree, to make the application. Quite clearly this application was made beyond thirty days of the date of t
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