JUDGMENT

1. These cases being appeals from appellate decrees, it devolves upon this Bench, according to the practice of the Court in references to a Full Bench, to decide the appeals.

2. The questions referred to us relate to the effect to be given to the ex parte decrees for rent mentioned in the reference, and arise by reason of a conflict in the decisions of this Court as to the effect to be given to such decrees. In the present case the ex parte decrees were decrees of a Deputy Collector; but the conflict of cases relates to the effect of decrees of Civil Courts generally, and with this wider question we think it proper to deal.

3. In Birchunder Manickya v. Hurrish Chunder Dass ILR Cal. 383, the plaintiff sued the defendant for rents for the year 1279 at the same rate as had been decreed to the plaintiff for the year 1278 in a suit brought against the defendant with respect to the same property. The plaintiff relied upon an ex parte decree obtained by him in that suit as showing the amount of rent due to him. The case came in 1874 before this Court in appeal from the decision of the District Judge of Tipperah, who had held that, inasmuch as no steps had been ever taken to execute the former decree, and it had become barred by limitation, it became inoperative and could not be used in evidence.

4. The case was referred by the Bench before which it came to a Full Bench, to determine the question whether the decree could be used in evidence.

5. The Full Bench held that the decree was admissible in evidence, the question of its value to be determined by the lower Courts. The case was remanded for a re-hearing. It went back to the District Judge, who found that, having been obtained ex partte, the decree was of no value, and ought to be disregarded. He then sent back the case to the Munsif to try the question of amount without reference to the former decree, which was accordingly done.

6. The case in 1878 again came on second appeal to this Court; it was heard by a single Judge; and from his decision an appeal was preferred under Clause 15 of the Letters Patent.

7. It was held, on this appeal, that the decree was binding on the defendants. The learned Chief Justice said [in Birchunder Manickya v. Hurrish Chunder Dass ILR Cal. 383]:

The Judge pronounced the decree to be of no value as evidence, merely because it had not been contested by the defendants in this we consider he was quite wrong; a decree obtained exparte is, in the absence of fraud or irregularity, as binding, for all purposes, as a decree in a contested suit. If it were not so, a defendant in a rent suit might always, by not appearing and allowing judgment to pass against him without resistance, prevent the plaintiff from, ever obtaining a definite judgment as to what is the proper amount of rent due from him to his landlord.

8. According to this decision, therefore, an ex-parte decree in a rent suit is conclusive as to the rate of rent alleged in the proceedings in the suit, the question as to the rate becoming by virtue of the decree res judicata.

9. According to this decision, also, the fact that no execution had ever been taken out by the decree-holder upon his ex-parte decree, does not prevent the decree having, against the defendant, the conclusive effect attributed to it.

10. In Goya Pershad Aubustee v. Tarinee Kant Lahoree 23 W.R. 149 before Phear and Morris, JJ., which was a rent suit, the question arose as to the effect to be given to an ex parte decree for rent in a former suit between the plaintiff' and the predecessor of the defendant. The question, as raised, was as to the effect to be given to such a decree as evidence. The learned Judges say:

It seems to us, however, that the Munsif was right in the view which he took of the effect of this decree considered as evidence between the parties, namely, that it is only evidence that Rs. 43 odd was, at the time when the decree was passed, due in respect of rent from the defendants to the plaintiff. The allegations ma