Thursday, 31 January 2013

application under 1 rule 10 of cpc.


Who may be joined as defendants.

All persons may be joined in one suit as defendants where-

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact would arise.



 Suit in name of wrong plaintiff

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.-

The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended-

Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.


IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of Reserve: January 28, 2009
Date of Order: February 04, 2009
IAs No.8285/07, 8287/07 and 7756/08 in CS(OS) No.99/07
SHRI SUDHIR YADAV ...    Plaintiff
Through: Mr. L.S. Rana, Adv.
Versus
SH. RADHEY SHYAM and ORS. ...   Defendants
Through: Ms. Suman Chaudhary, Adv. for applicant
Mr. Awadhesh Kumar, Adv. for applicant/
Legal heirs of D-3 and D-6
IA No. 8285/07
1.  This application under Order 1 Rule 10 CPC has been made by certain applicants to be impleaded
as defendants. However, the entire application does not disclose as to who were the applicants and who
wanted to be impleaded as a defendants. The application is accompanied by an affidavit of one Ms. Babita,
claiming to be mother and natural guardian of the applicants. She had not given the names of the
applicants. The application is liable to be dismissed for want of proper particulars and is hereby dismissed.
IA No.8287/2007 
2.  This application is under Order 1 Rule 10 CPC wherein a prayer has been made that the applicants
may be allowed to be impleaded as defendants. The application is signed by 3 persons as applicants and is
accompanied by affidavit of one Mr. Sanjay. The names of the persons sought to be impleaded as
defendants have not been disclosed in the entire application. However from the affidavit one can make out
that one of the applicants is Mr.Sanjay. The applicants want to be impleaded on the ground that under a
family settlement dated 22nd August, 2004, the share of defendant no.3 (1/8th share in the total land) was
further sub divided among 3 applicants and defendant no. 3 and each of them became owner of 1/32th share
and defendant no. 3 was no more owner of 1/8th share, therefore the 3 applicants were necessary parties to
the suit filed by the plaintiff against defendant no. 3 for specific performance of the agreement to sell. 3.
The agreement to sell relied upon by the plaintif is dated 10th October, 2006. In the agreement to sell,
defendant no. 3 is one of the signatories. There is no mention of any family settlement and defendant no. 3
has been stated to be owner of 1/8th share. The alleged family settlement relied upon by the applicant is an
unregistered family settlement, only a photo copy of which has been placed on record. Prior to filing of the
suit, the plaintiff had also served a notice on defendant no. 3 and another defendants. Even in reply  to
notice, there is no mention of a family settlement between the family and defendant no. 3. It is obvious that
this plea of family settlement has been invented later on after the filing of this suit. I consider that the
applicants cannot be added as parties to a suit for specific performance of an agreement between the
plaintiff and other defendants including defendnat no. 
3.  Family members of defendant no. 3 cannot be impleaded as a party on the basis of an alleged
family settlement. They are neither necessary party nor proper party, neither their impleadment is necessary
for adjudication of the issues between the parties. The application is hereby dismissed. IA No.7756/2009  4.  This application under Order 1 Rule 10 CPC has been made by Kundan Lal s/o Dalip Singh for his
impleadment as defendant in the suit. In the application, he has stated that the plaintiff and defendants no. 1
to 8 filed the present suit in connivance with each other with a motive to grab a residential plot of land
bearing khasra no. 105/134 in village Pandwala Kalan, New Delhi which fell in the share of the applicant in
an oral partition/family settlement during the lifetime of Sh. Dalip Singh. Applicant was in occupation of
this residential plot which was fully built up and he had water connection and electricity connection over it. 
5.  In the entire application, applicant has not stated what was the area of this plot and who other
persons were living in it. He had claimed that an oral partition was effected during lifetime of Sh. Dalip
Singh, his father and therefore he was a necessary party. 
6.  A perusal of agreement and documents show that the suit has been filed for specific performance
of the agreement to sell in respect of shares of Sh. Radhey Sham, Master Mahender Singh, Sh. Ishwar
Singh, Sh. Suraj, Sh. Bishamber Singh, Smt. Sarti and Sh.Kishan Chand. Sh. Dalip singh, the original
owner had 8 sons and each of his sons inherited only 1/8th share of his property. An agreement to sell was
entered into by 7 of the sons of Sh. Dalip Singh in respect of their 7/8th share and Sh. Kundal Lal is not a
party to the agreement and neither has entered into an agreement to sell with the plaintiff. I consider that
Sh. Kundal Lal who is not a party to the agreement to sell and whose share was not sought to be purchased
by the plaintiff, is not a necessary party. The application is liable to be dismissed and is hereby dismissed.
CS(OS) No.99/07 List on 26th March, 2009. 
Sd./-
February 04, 2009       SHIV NARAYAN DHINGRA J.

application for setting aside the ex parte decree.



Setting aside decree ex parte against defendant

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff s claim]

[Explanation.-Where there has been an appeal against a decree passed exparte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.


Delhi High Court.
Mehta Brothers And Ors. vs Bank Of India And Anr. 
Author: D Gupta
Bench: D Gupta, M Mudgal
JUDGMENT
Devinder Gupta, J.
1. These two appeals arise out of common order passed by learned Single Judge on 28.2.1999 allowing the application of defendant No. 6 for setting aside the ex parte decree and condoning the delay in filing the application for setting aside the ex parte decree.
2. In the suit filed by Bank of India out of which this appeal has arisen the status of parties is that Bank of India, the appellant in FAO(OS) No. 100/91 is the plaintiff; M/s. Mehta Brothers and others, the appellants in FAO(OS). No. 78/91 are defendants 1 to 5 and Deutsche Bank Asia, formerly known as European Asian Bank, respondent No. 2 in FAO (OS). No. 78/1991 and respondent No. 6 in FAO(OS). No. 100/91 is defendant No. 6.
3. Facts is detail have been mentioned by the learned Single Judge in the impugned order and need not be stated again by us. However, briefly some of the important facts are being stated. A suit for the recovery of Rs. 91,58,480.09 was filed by the plaintiff against the defendants on 30.8.1982 inter alia alleging that on the request of defendants 1 to 5 on 26.6.1979 the plaintiff established an irrevocable Letter of Credit for US $ 6,10,900/- (equivalent to about Rs. 50,00,000/-) in favour of M/s. Bentrex & Co., Singapore; the Letter of Credit was expressly made subject to the terms and conditions of Uniform Customs and practice for Documentary Credits (1974 Revision). International Chamber of Commerce Publication No. 290; on 1.9.1979 the beneficiary drew a site draft for an amount of Us$ 6,10,740.00 and presented the same along with other documents to defendant No.6 for negotiation; on 4.9.1979 defendant No. 6 after negotiating the documents dispatched the original and duplicate set of the documents from Singapore directly to the Chandni Chowk Branch of the plaintiff and called upon the New York Branch of the plaintiff for reimbursement under the said credit; the plaintiff alleged that this was done without furnishing the necessary certificate of compliance of credit terms, which were required under the credit. On 5.9.1979 New York Branch of the plaintiff on receipt of the aforesaid claim, in good faith paid on account/without prejudice the said amount of Us $ 6,10,740.00; on 13.9.1979 the plaintiff received the documents from defendant No. 6 and found that there were many discrepancies in the documents and they were not as per the Uniform Customs and Practice of Documentary Credits (1974 Revision); on 14.9.1979 by a talex the plaintiff pointed out to defendant No. 6 some of the discrepancies in the documents and stated that documents were being held at its risk and responsibility; defendant No. 6 was requested to reverse the reimbursement already claimed by it from New York Branch of the plaintiff; on the same day defendant No. 6 by its talex to the plaintiff rejected plaintiff's claim alleging that the discrepancies were of minor nature and all the terms and conditions of letter of credit were complied with: on 14.9.1999 defendant 1 to 5 also did not honour and retire the documents under the Letter of Credit on the ground that there were discrepancies in the documents and they were not at all in accordance with the terms of letter of credit. The plaintiff further alleged that defendant No. 6 failed and neglected to reply and reimburse to the plaintiff the amount received by it from the New York Branch of the plaintiff; defendant No. 6 had failed to furnish to the New York Branch of the plaintiff the Certificate of Compliance in terms of the said Letter of Credit, for that reason also defendant No. 6 acted in breach of its obligation under the letter of credit to do so and was, therefore, not entitled to claim and retain the payment received thereunder; despite repeated requests and reminders defendant Nos. 1 to 5 also did not honour and retire the said documents and went on contending that there were discrepancies in the documents; Defendant 1 to 5 also stated that their claim with Insurance Company was likely to be finalised soon and the amount payable thereunder shall be received by the plaintiff directly from the Insurance Company for the adjustment of the amount due and payable by them under the said Letter of Credit. As defendants No. 1 to 5 as also defendant No. 6 denied their respective liability to repay to the plaintiff the amounts claimed by plaintiff and the plaintiff was in doubt as to the person from whom it was entitled to redress, the plaintiff joined defendants Nos. 1 to 5 as well as defendant No. 6 as parties to the suit in order to determine the question as to which of the defendant i.e. defendant No. 1 to 5 or defendant No. 6 liable to the plaintiff and as to what extent; If separate suits were brought against defendant Nos. 1 to 5 and defendant No. 6 common question of law and fact would arise, therefore, the plaintiff had a right to relief against the defendants Nos. 1 to 5 or defendant No. 6 in the alternative.
4. On the allegations, aforementioned the plaintiff on 30.8.1992 filed suit in the Original Side of this Court for recovery of Rs. 91,58,480.08 being the amount of Letter of Credit and Interest. Decree was claimed primarily against defendant No. 6 and against defendants 1 to 5 in the alternative in case the Court would come to the conclusion that defendant No. 6 was not liable to pay any amount to the plaintiff. The prayer clause of the plaint reads:-
(a) This Hon'ble Court will be pleased to decree and order defendant No. 6 to pay to the plaintiff the equivalent in Rupees at the time of payment, the sum of US$ 11,46,492.99 together with interest thereon at 21% per annum with quarterly rests from the said 30th day of August, 1982 until payment and costs of the suit and such further and other reliefs as this Hon'ble Court may deem fit.
(b) That in the event of this Hon'ble Court holding that defendant No. 6 is not liable to pay any amount to the plaintiff, this Hon'ble Court will in the alternative be pleased to decree and order defendant Nos. 1 to 5 jointly and each severally to pay to the plaintiff Bank the said sum of Rs. 91,58,480.00 with further interest at the 21% per annum with quarterly rests from the 30th day of August, 1982 until payment.
(c) Costs of the Suit and
(d) Such further and other reliefs which this Hon'ble Court may deem fit. On 24.7.1984 written statement on behalf of defendant No. 6 was filed, which was duly singed for and on behalf of defendant No. 6 by Shri D.D. Udeshi, Constituted Attorney of defendant No. 6. On 16.8.1994 written statement on behalf of defendants 1 to 5 was filed. From 6.9.1982 to 13.7.1984 when the suit was taken up either in Court or before the Joint Registrar, defendant No. 66 was represented by its counsel. However, from 3.8.1984 to 29.4.1985 when on various dates the suit was taken up before the Joint Registrar the other parties were duly represented, namely, the plaintiff and defendants 1 to 5 but nobody appeared on behalf of defendant No. 6. On 21.5.1995 the suit was posted before the Court for framing issues. Plaintiff and defendants 1 to 5 were duly represented. As nobody appeared on behalf of defendant No. 6, it was proceeded against ex parte. Issues were not framed on that date. The suit was adjourned to 30.7.1985 for framing of issues, which ultimately were framed on 6.8.1985. The suit was set down for trial.
5. On 18.2.1987 and 19.2.1987 evidence led by the plaintiff against defendants No. 1 to 5 and ex parte against defendant No. 6 was recorded. Defendants 1 to 5 also led their evidence. Arguments were heard on 23.2.1987. On 10.3.1987 the suit was decreed ex parte against defendant No. 6 with costs. The suit against defendants 1 to 5 was dismissed on merits and they were left to bear their own costs. The plaintiff did not file any appeal in so far as that part of the decree by which its suit against defendants 1 to 5 had been dismissed.
6. On 4.4.1988 two applications were filed by defendant No. 6, namely, IA. 1655/88 under Order 9 Rule 13 CPC praying for setting aside the ex parte decree dated 10.3.1987 and IA. No. 1656/88 under Section 5 of the Limitation Act praying for condoning the delay, which had occured in filing the application for setting aside the ex parte decree.
7. By the impugned order passed on 28.2.1991 learned Single Judge allowed both the applications filed by defendant No. 6. In other words, delay in filing the application for setting aside ex parte decree was condoned. Ex parte decree against defendant No. 6 was also set aside subject to payment of Rs. 25,000/- as costs out of which Rs. 15,000/- were payable to the plaintiff and Rs. 10,000/- to defendants No. 1 to
5. While setting aside the ex parte decree against defendant No. 6, by the same order, learned Single Judge also set aside that portion of the decree whereby the suit on merits had been dismissed against defendants 1 to 5. In doing so learned Single Judge relied upon the proviso to Rule 13 of Order 9 of the Code. Feeling aggrieved against the impugned order, defendants 1 to 5 have filed FAO(OS). No. 78/91. The plaintiff has also filed FAO(OS). No. 100/91.
8. We have heard learned counsel for the parties and were taken through the entire record.
9. The plaintiff Bank in its appeal [FAO(OS). No. 100/91] his questioned the legality and validity of the impugned order condoning the delay and setting aside the ex parte decree against defendant No.
6. A preliminary objection has been raised by learned counsel for defendant No. 6 about maintainability of the said appeal by the plaintiff Bank to challenge the impugned order on the ground that the plaintiff having accepted the costs is estopped to challenge the same.
10. Relevant facts as regards the aforementioned preliminary objections are that pursuant to the directions of learned Single Judge made in the impugned order learned counsel on behalf of defendant No. 6 tendered the costs by means of two cheques of Rs. 15,000/- and Rs. 10,000/- to the plaintiff and defendants 1 to 5 respectively. Defendants 1 to 5 did not accept the costs tendered to them. The plaintiff, however, accepted the costs without any protest or demur. The fact that the costs were accepted by the plaintiff when tendered on behalf of respondent No. 6, pursuant to the impugned order is not disputed. It is also not disputed that the costs were accepted much prior to the institution of appeal by the plaintiff.
11. The other appeal [FAO(OS) 78 of 1991] on behalf of defendants 1 to 5 primarily is on the ground that the judgment and decree dated 10.3.1987 was not an ex parte decree against defendants 1 to 5. It was a decree of dismissal of the plaintiff's suit and was a separate and independent decree. It was passed on merits after due contest and on recording of evidence. Such a decree could not have been set aside, while deciding the application of defendant No. 6 filed under Order 9 Rule 13 of the Code. It could have been set aside only by an appellant court had an appeal been filed by the plaintiff Bank, which it did not file. In addition the other ground to challenge the impugned is that in case the above plea of defendants 1 to 5 is not accepted, in that case they are entitled to challenge that part of the impugned order of learned Single Judge on merits by which the ex parte decree has been set aside against defendant No. 6. No sufficient cause had been shown by defendant No. 6 for setting aside the ex parte decree. There was a delay of 13 months in applying for setting aside the ex parte decree, which had not been explained satisfactorily.
12. In addition to raising preliminary objection about maintainability of the appeal filed by the plaintiff Bank, Shri L.R. Gupta, appearing on behalf of defendant No. 6 supported the order of learned Single Judge contending that after Learned Single Judge came to the conclusion about the nature of the decree he was perfectly justified in setting it aside as against defendants 1 to 5 also. According to him, the criteria for setting aside the ex parte decree against the defendants applying for the same would be the nature of the decree and not the fact that the same on contest had been passed in favour of the other defendants. Nature of decree being indivisible, effort of the Court would be not to pass any contradictory decrees, therefore, learned Single Judge was justified in having set aside the entire decree. However, Mr. Gupta submitted that defendant No. 6 was not otherwise concerned as to whether decree of dismissal of suit against defendants No. 1 to 5 be or be not set aside. Primarily concern of defendant No. 6 is that it be set aside only against it so as to enable defendant No. 6 to contest the plaintiff's suit on merits.
13. In so far as (FAO(OS) 100791, the appeal of the plaintiff Bank is concerned that whether or not on acceptance of costs the Bank would be estopped to challenge the impugned order, it will be necessary for us to see the nature of the impugned order that whether imposition or payment of costs was made a condition for wetting aside the ex parte decree.
14. In Bijendra Nath Srivastava (dead) through LRs. v. Mayank Srivastava and Ors. 1994 (6) SCC 177 it was held that the principle of estoppel, which precludes a party from assailing an order allowing a petition subject to payment of costs, where the other party has accepted the costs, in pursuance of the said order, applies only in those cases where the order is in the nature of a conditional order and payment of costs is a condition precedent to the petition being allowed. In such a case it is open to the party not to accept the benefit of cost and thus avoid the consequences of being deprived of the right to challenge the order on merits. It was further held that this principle would not apply to a case where the direction for payment of costs is not a condition on which the petition is allowed not costs have been awarded independently.
15. By the impugned order while allowing application for condensation of delay and setting aside ex parte decree learned Single Judge specifically made it clear that imposing costs of Rs. 25,000/- on defendant No. 6 was a condition precedent. The order says:
". I, therefore, impose cost of Rs. 25,000.00 on defendant No. 6. this being conditional, out of which Rs. 15,000/- shall be payable to the plaintiff and Rs. 10,000/- to defendants 1 to 5."
16. It was also not argued before us on behalf of the plaintiff Bank that imposition of costs was not a condition precedent in allowing the application of defendant No. 6. Applying the principles laid down in Bijendra Nath Sirivastava's case (supra) to the facts of the instant case in which the plaintiff Bank had accepted the costs without any reservation, much prior to the filing of the appeal will be precluded from challenging the impugned order on merits. The appeal preferred by the plaintiff Bank [FAO (OS). No. 100/91] is thus liable to be dismissed as not maintainable due to applicability of the principle of estoppel. Ordered accordingly.
17. We now take up the other appeal of defendants 1 to 5. Learned Single Judge while proceeding to set aside the ex parte decree examined the question that whether the decree be set aside only against defendant No. 6 or as against defendants 1 to 5 also. Learned Single Judge was aware of the fact the defendant No. 6 in its application had not said anything on this aspect since it was concerned only with its own problem.
18. Learned Single Judge, however, proceeded to examine the question as in his opinion it squarely arose because the plaintiff Bank had raised this plea that under proviso to Rule 13 of Order 9 CPC decree should be set aside as a whole. On reference to a number of decisions learned Single Judge opined that two views had emerged; firstly if the decree is one and indivisible it must be set aside in its entirety and not simply against the party or parties who had made applications for setting the same and this would be irrespective of the fact whether the decree has been passed in favour of some of the defendants. The other view was that if the suit has been contested by some defendants and it has been dismissed on merits against them, such a decree is not against them, so the proviso would not empower the Court to set aside the same. This according to learned Single Judge was the extreme view to take. Accordingly he preferred the first view and held that though the ordinary rule would be that where ex parte decree is passed against other defendants, it should be set aside only against those who apply for setting aside the same but the proviso enables the Court to set aside the ex parte decree as against the other defendants, who had appeared and contested the suit, when nature of decree requires that it should be set aside against all other defendants as well. In his view the object of the proviso is to provide for cases where it may be necessary for the ends of justice to set aside the decree not only against the defendants applying to have the same set aside but also against other defendants as well. Learned Single Judge brushed aside the submission on behalf of defendants 1 to 5 that decree against all or any of the defendants can be set aside only if it is against all or any one of them and in case decree is in favour of any of the defendants it cannot be set aside in exercise of powers under proviso to Rule 13 of Order 9 CPC.
19. Learned counsel for defendant 1 to 5 is aggrieved with this part of the order that without assigning and reason learned Single Judge opted for the first view and not for the second view.
20. Learned Single Judge having opted for the first view proceeded to examine the facts of the case as regards the applicability of the said view. While doing so he observed that liability of defendants 1 to 5 on the one hand and of defendant No. 6 on the other was in the alternative. But in his view the liability of the two sets of defendants as claimed in the plaint and for the defense which had been raised in their respective written statements was very much interwoven and inextricably mixed up. He proceeded to observe that in case it held that defendant No. 6 was not liable then in that even defendants 1 to 5 might be held liable to pay the amount and on the other hand if it be held that defendant No. 6 had filed to perform this functions and did not observe due care in negotiating the documents in that case defendant No. 6 might be held liable and in that eventuality defendants Nos. 1 to 5 might have to be absolved of their liability. Therefore, he proceeded to set aside the decree of dismissal of suit as against defendant No. 1 to 5 also.
21. Another ground, which prevailed with learned Single Judge in setting aside the entire decree is that in case decree is set aside only against defendant No. 6 and ultimately it is found that defendant No. 6 is not liable, in that case prejudice caused to the plaintiff would be irreparable. Therefore, on the ground of prejudice being caused to the plaintiff, he felt that it was necessary and desirable that decree must be set aside against defendants 1 to 5 also.
22. The above reasoning of learned Single Judge was seriously assailed on behalf of defendants 1 to 5 urging that considering the nature of suit, it was not at all incumbent that the suit as of necessity must be decreed either against defendant No. 6 or against defendants 1 to 5. The third possibility was not at all examined and cannot be ruled out that may be in a given situation the entire suit of the plaintiff may be dismissed on various pleas, which might be raised by two sets of defendants in their respective written statements or it may be that the suit may be decreed as against one set of defendants and dismissed as against the other. It was vehemently contended by Mr. Sawhney appearing for defendants 1 to 5 that the suit had been dismissed against defendants 1 to 5 on merits after due trial in which the plaintiff had full opportunity of leading evidence as against defendants 1 to 5, who alone had contested the same. The plaintiff Bank felt contended in leading whatever evidence it though fit and proper and then felt satisfied with the decree of dismissal of its suit against defendants 1 to 5. For that reason alone it was not thought proper by the Bank to challenge the decree of dismissal of its suit against defendants 1 to 5 in appeal. Now in case the Court had come to the conclusion that ex parte decree against defendant No. 6 was liable to be set aside, it was not at all necessary to set aside, it the entire decree and thereby permit the plaintiff to prove afresh its suit against defendants 1 to 5 by leading fresh evidence, which the plaintiff Bank never thought of earlier, when it had that opportunity. Suit after setting aside ex parte decree against defendant No. 6 can very well, proceed independently and has to be tried on the basis of the pleas raised inter se the plaintiff and defendant No. 6.
23. Prior to coming into force of the Civil Procedure Code, 1908 corresponding provision for setting aside ex parte decree in the Code of 1882 was Section 108. Section 108 of the Code of 1882 was in the following terms:-
"In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
24. There has been a divergence in judicial opinion prior to 1908 on the question whether ex parte decree could be set aside against other defendants also while setting aside the ex parte decree passed against the defendant applying for it. We need not refer to the decisions and the views, which prevailed prior to coming into force the Code of 1908. Suffice it to say that in order to set at rest the said controversy, first proviso to Rule 13 of Order 19 was inserted in the Code of 1908 in addition to the words "as against him" after the words "shall make an order setting aside the decree". In other words when the present Code of 1908 was enacted Section 108 of 1882 Code was adapted with some alterations, namely, addition of words "as against him" after the words "setting aside the decree" and by adding the first proviso. Thus the controversy was set at rest making it clear that a decree can be set aside in favour of a defendant against whom it had been passed ex parte. The Special Committee, which had been appointed to consider the amendment of 1882 Code had explained in its report the object of inserting the words "as against him" as follows:-
"The Committee have inserted the words to make it dear that a decree can only be set aside in favour of a defendant against whom the decree has been made ex parte. There is some conflict of judicial authority upon this point and the Committee think that the matter may be set at rest in this sense."
25. Thus the proviso enlarges the power of the Court to set aside the decree even against all or any of the other defendants where the decree is of such a nature that it cannot be set aside as against the applying defendant(s).
26. The Select Committee inserted the first proviso and gave the following reason in doing so:-
"We think it necessary to provide specially for cases in which it may not be possible to set aside the decree against the applicant only."
27. Rule 13 of Order 9 of the Code as it stands today is as follows:-
"13. Setting aside decree ex part against defendants- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation : Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground Other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree."
28. A bare reading of the aforementioned provision makes it clear that the applicability of the proviso is dependent upon not on the question as to whether the decree is in favour or against a contesting defendant "but on the nature of decree i.e. "where the nature of decree is such" that it cannot be set aside as against the defendant applying for setting aside only than in that case it may be set aside against all or any of the other defendants. Right to set aside ex parte decree is conferred expressly only upon the party who applies to set aside the decree. Nature of decree would be the deciding factor while considering the question whether decree is to be set aside as a whole or against that defendant only, who has applied for setting aside. There are some classes of case in which decree cannot be set aside only as against the defendant applying for setting aside against other defendants also. Such classes of cases would be where the decree is joint and indivisible or where the decree proceeds on the ground common to all the defendants or when the suit result in two in consisting decrees if the ex parte decree be not set aside against the other defendant also.
29. Even after insertion of proviso there has been a conflict of opinion. One view has been taken by a Full Bench of Assam High Court in Khagesh Chandra v. Chandra Kanta Barua and Anr. AIR 1964 Assam 183. The Full Bench analysed various cases on the conflict as existed prior to the amendment of 1908 and thereafter also, it was noticed that there were two cases only; one before amendment of 1908 Code and another subsequent to it where the Court had gone to the extent of setting aside a decree, which was in favour of some of the defendants, dismissing the plaintiff's claim against them. One of the said decision prior to amendment was of Calcutta High Court in re Hari Dass Karmakar 5 Cal LJ 202 and the other decision is that of Allahabad High Court in Ram Baran v. Bodh Ram and Ors. AIR 1934 Allahabad 1051. There Judges comprising Full Bench gave their separate opinion in Khagesh Chandra's case (supra) on the question, which was referred to the Bench i.e. whether the Court had jurisdiction under Order 9 Rule 13 CPC to set aside a decree under which the suit had been dismissed on contest against one of the defendants and decreed ex parte against the others; and thereby restore the whole suit for fresh trial against both the defendants. Sarjoo Parsad, C.J. in his separate decision held that the proviso to Rule 13 of Order 9 CPC does not confer any jurisdiction upon the Court to reverse a decree dismissing the suit of the plaintiff as against some of the defendants imperilling thereby the interest of those defendants also by re-opening the whole suit. The Rule confers a privilege upon the defendants against whom an adverse decree has been passed ex parte and does not impose a disability on them and that also at the instance of the co-defendant. In the absence of any appeal by the plaintiff, to whose prejudice the decree has been passed on merits and under which the successful defendant has acquired a valuable right, it cannot be held that in a collateral proceeding, at the instance of a co-defendant the decree can be set aside. The reasons for holding so, which prevailed with Sarjoo Prasad, C.J. are to the following effect:-
"The privilege given under the Rule for applying for setting aside the ex parte decree is to the defendant against whom an ex parte decree has been passed. Emphasis lies on the word "against". This privilege can be availed by the defendant, in appropriate cases mentioned in the Rule and if the Court is satisfied, the decree against that defendant may be set aside and the suit ordered to be reheard. In the context, it appears to me that the suit means the suit in so far as it effects the liability of that particular defendant and not the whole suit, including even such defendants in whose favour the suit may have been dismissed and their liability determined The rule is subject to the proviso which enlarges the power of the Court to set aside the decree even against all or any of the other defendants where the decree is of such a nature that it cannot be set aside as against the applying defendant only. If the word 'decree' or 'suit' in the first part of the Rule referred to the 'whole suit' and the 'whole decree' then the words "as against him" and the proviso would be redundant, because in that event, in any case where the application under the Rule succeeds, the whole decree will have to go and the whole suit will have to be re-tried."
30. While giving his own reasons for not accepting the views, which had been expressed, prior to the Amendment of 1908,by Calcutta High Court in Hari Das Karmakar's case (supra) and the view of Allahabad High Court in Ram Baran's case (supra), Sarjoo Parsad, C.J. observed that the decisions being on the proviso to the Rule 13 of Order 9 C.P.C., which relate to instances where the suit had been decreed on contest or ex parte against some of the defendants have been succinctly classified under the following two board heads in the well known Commentaries of Mulla:
"I. Where the decree is ex parte against all the defendants, but the application to set aside the decree is made only by some of them.
II. where against some of the defendants, the decree is passed ex parte, but against others who have appeared and defended the suit, it is passed on the merits, and the application to set aside the decree is made by one or more of the defendants against whom the decree was passed ex parte"
31. Sarjoo Parsad, C.J. then observed that scrutiny of all cases under the above two classifications will bear out the result that the proviso to Rule does not confer any jurisdiction upon the court to reverse a decree dismissing the suit of the plaintiff as against some of the defendants.
32. Ram Labhaya, J. in his separate judgment on an analysis of the decisions cited before the Bench opined that the Legislature did not intend to authorise setting aside of an order dismissing a suit oh contest against a defendant or defendants even though it is incorporated in a decree sheet which embodied an ex parte decree against others. According to Ram Labhaya, J. the words "other defendants" in the proviso mean the defendants other than the applicant against whom the decree is passed, whether as against them it was passed ex parte or after a hearing, This statement of law would not cover cases in which the suit is dismissed or merits against defendant or defendants.
33. Deka, J. also in his separate judgment did not agree with part of the opinion expressed by Sarjoo Prasad, C.J. where distinction was tried to be drawn from the fact that since the words "as against" are used in the proviso that they only imply that the decree must be against the other defendants and not in their favour, which is an order of dismissal. Deka, J. opined that he was inclined to give a wider connotation to the word "decree" as defined in the Civil Procedure Code and was riot prepared to rule out the case where the suit in the earlier hearing ended in an order favourable to same or one of the defendants. He proceeded to record his opinion that there is nothing in the words "of the statute" to imply such a distinction that whether the dismissal of suit as against any defendant in the hearing in which an ex parte decree was passed against the rest, would take the case out side the scope of proviso to Rule 13. He was of the view that where the nature of case demands that the suit should be restored in its original form to give relief to the aggrieved party whosoever he may beg it would make no difference whether the suit was dismissed or decreed against the defendants who appeared at the first hearing and even contested. Proviso to Rule 13 of Order 9 C.P.C. admits of no narrower interpretation and when the decree is of such a nature that proper relief cannot be given to the applying defendant, without setting aside the decree against other defendants, no matter in what shape it existed, the decree may be set aside against the other defendants.
34. From the analysis of the three separate opinions what can be found is that Sarjoo Parsad, C.J. proceeded to interpret the proviso to Rule 13 of Order 9 literally opining that it conferred no jurisdiction on the Court to set aside the whole decree and direct the entire suit to be restored to its file to the prejudice of the defendant who had successfully contested the plaintiffs claim. Ram Lubhaya, J. gave his opinion by interpreting the proviso on making reference to the intention of the Legislature. Deka, J., however, took a broader view and opined that it is the nature of decree, which is a decisive factor in coming to the conclusion that whether decree should be set aside as, a whole or only as against the defendant applying for it and not the factor that whether decree is in favour of some of the defendants after contest and against other defendants who remained absent. Thus the majority view held that where a suit is dismissed against one defendant and ex pane decree is passed against another defendant, the Court has no jurisdiction to set aside the dismissal in favour of that defendant against whom suit is dismissed on the application of the other defendants against whom ex parte decree is passed. This view has been followed in Bhimrao Tanbaji v. Girdharilal Ramrakh and Anr. AIR 1954 Nagpur 125.
35. In the instant case learned Single Judge did not follow the view taken by Sarjoo Parsad, C.J. and Ram Lubhaya, J. but preferred the view taken by Deka, J., which was based on the view taken by a Single Judge of Allahabad High Court in Ram Baran v. Bodh Ram and Ors. the Court had opined that Jurisdiction vests
in the Court under Order 9 Rule 13 of the Code to re-open a decree that had been pronounced even in favour of one of the defendant after contest in a case where decree was one and indivisible. Learned Single Judge of Allahabad High Court did not follow the three decisions, namely, Ghonnu Mal v. Sant Das (1913) 18 I.C. 327; Monoku v. Sita Ram (1894) 18 Bom 142: and Mohini Chowdhurani v. N.N. Roy, (1900) 4 CWN 456 but followed the view of Full Bench decision of Allahabad High Court in Bhura Mal and Ors. v. Hari Kishan Das 24 All. 383 in which Aikman, J. had remarked that the Court must be assumed to have the power to set aside the whole decree, if the decree from its nature is one and indivisible, or if, in order to give to the defendants against whom an ex parte decree has been pronounced the relief to which they are entitled, it must be set aside as a whole.
36. In view of the conflict between two decisions of Allahabad High Court reported as Sardar Karam Singh v. Jai Krishan 1963 ALJ 472 and Ram Baran's case (supra) a Division Bench of that Court in Ziley Singh v. Munchi and Ors. 1969 ALL LJ 804 also had an occasion to consider the scope of the proviso to Order 9 Rule 13 CPC Learned fudges observed that the following classes of cases are possible in which an application under Order 9 Rule 13 CPC can be made:-
"(i) Where the suit has been decreed ex parte against all the defendants;
(ii) Where the suit has been decreed on merits against some defendants and ex parte against the others; and
(iii) Where the suit has been dismissed on merits against some defendants and has been decreed ex parte against the remaining."
37. It is the third category with which we are concerned. Earlier decisions on the points were considered including the decision in Khaqesh Chandra's case (supra). The bench answered the question holding that the proviso does not empower the Court to set aside a decree dismissing the suit on merits against a defendant on an application filed under Order 9 Rule 1.3 CPC by another defendant against whom decree has been passed ex parte. In coming to this conclusion, the bench noticed the changes made in the Code of 1908 and the reasons for the same and opined that as a general rule the decree can be set aside only against the person making the application under Order 9 Rule 13 CPC. The proviso contemplates that in exceptional cases only the decree can be set aside also against the other defendants. The rule permits only a defendant against whom ex parte decree has been passed to make an application for setting it aside. In case where decree is of such a nature that it cannot be set aside against the defendant making the application alone, the proviso empowers the Court to set it aside against all or any of the other defendants also, Putting it explicitly the bench observed that if the decree is joint and indivisible against several defendants and it is not possible to set it aside only in respect of defendant or defendants making the application, then the Court may set it aside in respect of other defendants also. Thus as regards first class of cases mentioned above, proviso clearly applies. No view was expressed with respect of 2nd class of cases but as regards 3rd class of cases, in opinion of the Bench, the proviso would not apply to the cases where the suit has been dismissed on merits against some of the defendants. The Bench was of the view that in such a case though on paper there will be one decree but in fact and substance there would be two decrees, one in favour of the defendants against whom the suit has been dismissed and the other against the defendants against whom the suit has been decreed ex parte. Therefore, the decree cannot be said to be one and indivisible and in such a case the decree can be set aside without affecting the decree in favour of the other defendants.
38. Nagpur Bench of Bombay High Court has followed the second view in Vasani Jaiwantra Mahajan v. Tukaram Mahadaji Patil AIR I960 Bom 485. Learned Single Judge of the said Court on an analysis of various decisions as regards the proviso held that the same contemplates cases where the decree is of such a nature that it cannot be set aside against one defendant only. In other words, it was opined that it is the nature of the decree that is the determining factor and not the reasons behind the decree. Even if the defendant of the two defendants is common and even if the decree proceeds on a ground common to all the defendants, the ultimate decree should not be set aside against all the defendants unless it is of such a nature that it cannot be set aside as against one defendant only. Learned Single Judge observed that the two decrees may be inconsistent in the sense that the grounds given are inconsistent. By way of illustration learned Single Judge gave an example that in a money suit a decree against two or more defendants may be a decree for a certain sum of money as damages for breach of a contract, and if decree against one of the defendant is set aside under Order 9 Rule 13 C.P.C. and ultimately the suit is dismissed against such a defendant on the ground that he did not commit a breach of contract, then though the grounds may be inconsistent, the original decree is not of such a nature that it cannot be set aside as against one defendant only. He observed that generally in the case of a money decree the application of the proviso to Order 9 Rule 13 CPC is not attracted. It was held that for the application of the proviso to Order 9 Rule 13 CPC it is not sufficient that there was possibility of inconsistent decrees but what is necessary is that the original decree, which is being set aside at the instance of only one defendant, is of such a nature that it cannot be set aside, as against that defendant only.
39. This view also found favour with the Orissa High Court. A Division Bench of the said Court in an unreported decision in Civil Revision No. 485 of 1979 Akura Dash v. Jagannath Dash and Ors. decided on 14.5.1987, while reversing the contrary view as was taken by Single Judge of that Court in Madan Naikarni v. Ranjit Mahakur and in the unreported decision in Misc. Appeal No. 356 of 1983, Rabindra Prasad Kamilla v. Abhava Prasad Kamilla decided on 23.6.1987 held that an ex parte decree can be set aside even when it is passed in favour of some of the defendants if it would give rise to two inconsistent decrees. Ankura Dash's case (supra) is relied upon in a later decision of Single Judge reported as Samir Snigdha Chandra v. Pranaya Bhushan Chandra and Ors. ,
40. Rajasthan High Court has also taken a similar view in Mst. Suraj Kunwar v. Charnpalal and Ors. that as a general rule an ex parte decree is to be set aside against the person making the application under Order 9 Rule 13 CPC Ordinarily it need not be set aside against the others. The proviso to Rule 13 of Order 9 C.P.C. should be confined to cases where the nature of the decree is that that it cannot be set aside as against some defendants only.
41. Learned single Judge in the impugned judgment did not assign any reason in following the opinion expressed by Deka, J. in Khagesh Chandra's case (supra). However, the view taken by learned Single Judge in the impugned judgment is that the nature of decree is the determining factor in order to apply the proviso enabling the Court to set aside the ex parte decree as against other defendants. We also find that the same is a consistent view as was adopted by Deka, J. in Khagesh Chandra case (supra). In any case, we may assign nor own reasons for the same. The other view that the jurisdiction of the Court is limited only to set aside a decree passed against the defendants and not that decree, which is in favour of the defendant, on a bare reading of the proviso appears to be erroneous. The reasons for the said view as have been taken are that in case the suit has proceeded on merits against one set of defendants, who after putting in appearance contested the same and on due trial the same is dismissed, in that case remedy is available to the plaintiff to file appeal against decree of dismissal of suit against the said set of defendants. In case such an appeal is not filed the decree of dismissal of suit in so far as the said set of defendants is concerned becomes final. The decree passed in favour of the plaintiff ex parte against the defendant alone can be set aside under Order 9 Rule 13 CPC at the behest of one or more of the defendants, who are proceeded against ex parte.
42. On the Court reaching the conclusion that ex parte decree against the defendant applying for the same deserves to be set aside, the first step would be to allow his application and set aside the ex parte decree as against him upon such terms as to costs etc. as the Court may deem fit and the Court shall appoint a day for proceeding with the suit. The stage for applying the principle embodied in the proviso is the second stage that whether it should be set aside against the other defendants who have not approached the Court for setting aside the same or whether it should be set aside as a whole, irrespective of the fact that a prayer is made or not by any party, the Court is enjoined upon to consider the next question that whether the decree is of such a nature that it cannot be set aside as against the said defendant only, it may be set aside as against all or any of the other defendants also. The Legislature was aware of the controversy, which existed before the proviso was inserted in 1908 Code. The controversy was on both the counts. Had the Legislature intended to limit Court's jurisdiction in setting aside that part of the decree where suit ended in an order favourable to some of the defendants, it would have done so explicitly by saying that the decree may be set aside as against all or any of the other defendants against whom it is ex parte. But no scope for any doubt appears to have been left when the Legislature empowered the Court to set aside the same as "against all pr any of the other defendants" without making any distinction on the defendants that whether those defendants had remained successful or not. The only condition to be satisfied for applying the proviso is that the nature of the decree is such that it cannot be set aside as against the defendants applying. Consequently, we are of the opinion that learned Single Judge was correct in following the view taken in the Full Bench decision of Assam High Court by Deka, J.
43. Learned Single Judge, however, fell in error in not correctly applying the said principle to the facts of the instant case. Learned Single Judge proceeded to examine the nature of decree on applying the test of prejudice that was likely to caused to the plaintiff Bank in case decree was not set aside as a whole. Such a consideration cannot be a ground to set aside the entire decree. The other criteria applied by learned Single Judge to set aside the entire decree was about the reasons, which had prevailed with the court in dismissing the suit against defendants 1 to 5 and decresing the suit ex parte against defendant No. 6. On the parity or those reasonings it was held that there was possibility of conflicting decrees being passed. Such a reasoning also cannot be a determining factor to find out the nature of decree. There was no question of any conflict in decrees since in a suit like this possibility cannot be ruled out that the Court might come to a conclusion that the suit is liable to be decreed against both set of defendants or liable to be dismissed against both sets of defendants or liable to be decreed in favour of one set of defendants and dismissed against the other set of defendants. It is also not correct to say that in the instant case decree is of such a nature that it cannot be set aside as a whole. There is a decree passed by the Court dismissing the suit of the Plaintiff Bank against defendants 1 to 5, which is a totally separate and distinct as regards the decree, which was passed against defendant No. 6. On the face of it the decree is not indivisible but was of a divisible, character. The decree dismissing the suit against defendants 1 to 5 does not contain any reasons and reasons given in the judgment cannot be imported to the decree. There is no question of any conflicting decrees in a suit like the one filed by the plaintiff Bank such is founded on separate cause of action against two set of defendants through on common facts. If suit is dismissed against one set of defendants, the other possibilities aforementioned cannot altogether be ruled out. Therefore, learned Single Judge was not justified in observing that it would amount to passing an inconsistent decree of that nature of decree is such that it is liable to be set aside as a whole. In this view of the matter, we need not consider the alternate submissions made by Mr. Rajiv Sawhney appearing for defendants 1 to 5 that defendant No. 6 had not made out any case for setting aside ex parte decree against it.
44. Consequently, the judgment of learned Single Judge in so far as it proceeded to set aside the decree, which had been passed dismissing the suit of the plaintiff Bank against defendants 1 to 5 is liable to be set aside. The appeal [FAO (OS). No. 78 of 1991] is accordingly allowed and the appeal [FAO (OS) No. 100 of 1991] is dismissed leaving the parties to bear their costs.
45. A copy of the judgment be placed by the Registry on the record of FAO(OS) No. 100 of 1991.

application under order 9 rule 7 of cpc.

Rule 7 of Order 9 of the CPC reads as under :- 

"Rule 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. 
Where the Court has adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."



Supreme Court of India.
Vijay Kumar Madan And Ors. vs R.N. Gupta Techn
Bench: R Lahoti, B Agrawal
ORDER
1. Certain premises situated in the township of Gurgaon, Haryana were held by the respondents on tenancy from the appellants under the Deed of Lease dated 1.4.1996. The rent of the tenancy premises, payable with effect from 1.4.1996, was Rs. 63,087.50 per month, in addition to maintenance charges of Rs. 40,000/- per month. On 27.3.1998, the appellants filed a suit for recovery of rent and ejectment of the respondents alleging the respondents to be in arrears with effect from 1.5.1996. On 2.5.1998 the defendants/respondents and their counsel failed to appear in the trial court and, therefore, the trial court directed the suit to proceed ex-parte against the defendants. On 29.5.1998 the defendants moved an application under Order 9 Rule 7 of the CPC praying for setting aside of the ex-parte order on the ground that their counsel was prevented from appearing in the court on account of having met with an accident. On 9.9.1999 the trial court allowed the defendants' application recording the finding that the counsel for the defendants had good and sufficient cause for previous non-appearance in the court and that the non-appearance of defendants and their counsel on 2.5.1998 was not intentional but due to avoidable circumstances. However, purporting to exercise the power conferred by Order 9 Rule 7 of the CPC to put the defendants, on terms, the trial court directed as under:--
"It is pertinent to mention here that since defendants are enjoying the property, it will be reasonable to direct them to deposit monthly lease amount in the court at he time of filing written statement. If ultimately it is found that case of the plaintiffs is false and that of the defendants is true, defendants will be entitled to claim back that amount from the plaintiffs. On this condition I set aside the exparte order dated 2.5.98 on the condition that the defendants will deposit monthly lease amount on 16.2.99 for filing the written statement and for payment"
2. The defendants feeling aggrieved by the order of the trial court to the extent to which it placed the defendants on terms in the manner reflected in the order of the trial court extracted and reproduced hereinabove, preferred an appeal in the High Court. In its order dated 14.10.1999, which is impugned herein, the High Court formed an opinion that the condition imposed by the trial court on the defendants while setting aside the ex-parte order was too onerous and in view of such opinion formed by the High Court, the condition imposed by the trial court was directed to be set aside. At the same time taking care of the hardship that was likely to result to the plaintiffs (respondents in the High Court), the High Court directed the trial court to proceed to dispose of the suit as early as possible and latest by 31.3.2000.
3. The plaintiffs filed the present petition seeking special leave to appeal. On 26.2.2000, while allowing the leave to the appellants, it was directed that the impugned order of the High Court dated 14th October, 1999 should remain stayed. However, the Court added that the stay will not in any way affect the direction of the High Court regarding the disposal of the suit by 31st March, 2000. The result of the interim order was that the order of the trial court dated 9.1.99 putting the defendants on terms came into operation and as the defendants failed to comply with the condition imposed by the trial court, the trial court in terms of the interim order passed by this Court decided the suit on 31.3.2000 passing a decree for recovery of rent in arrears as also for recovery of possession as prayed for by the plaintiffs. However, it appears that prior to 28.2.2000 the date of the passing of the interim order by this Court, and armed with the order of the High Court, the defendants had filed their written statement. The trial had proceeded and on behalf of the plaintiffs four witnesses (P.W. 5 to P.W. 8) were examined which were also cross examined on behalf of the defendants, by the time this court passes the order dated 28.2.2000. Earlier, while the proceedings had remained ex-parte, four witnesses, namely, PW 1 to PW 4 were examined on behalf of the plaintiffs and they were not cross examined by the defendants. There is yet another important event which has taken place during the pendency of this appeal. Subsequent to the passing of the decree by the trial court the (sic) was put to execution. On 1st November, 2000, the plaintiff-appellants have taken possession over the property with police aid, as directed by the executing court.
4. Here we may give an indication of the controversy between the parties to the suit though we are not concerned with the merits thereof. On the question of recovery of arrears of rent the parties are laying blame on each other. According to the defendants the plaintiffs have failed in fulfilling their obligation as to certain material terms and conditions of the lease and therefore, the obligation of the defendants to pay rent remains suspended and they are not liable to pay the rent; while according to the plaintiffs they have placed the defendants in peaceful and full possession of the tenancy premises and nothing had remained to be done by them, and therefore, they are entitled to the recovery of rent and maintenance charges as agreed.
5. During the course of hearing, the learned counsel for the defendant-respondents submitted that if this Court is (sic) to sustain the order of the High Court, in that (sic) in order to do complete justice in the case, this court ought to set aside the judgment and decree dated 31.3.2000 passed by the trial court which is in consequence of the interim order made by this Court and the parties should be put back to the position to which they would stand relegated in terms of the order of the High Court. However, the learned counsel very fairly stated under instructions that if the order of the High Court be sustained the defendants shall not pray for restitution of possession over the tenancy premises in spite of the decree of eviction being set aside and shall also not insist on such of the witnesses being recalled and made available for further cross-examination, as have already been cross examined by the defendants. In view of the abovesaid stand taken by the learned counsel for the defendants, the limited issue which survives for decision is whether the condition imposed by the trial court putting the defendants on terms can be said to be too onerous as could not have been imposed under Order 9 Rule 7 of the CPC and whether the High Court was justified in setting aside that condition while sustaining the order of the Trial Court setting aside the ex-parte proceedings.
6. Having heard the learned counsel for the parties, we are of the opinion that the impugned order of the High Court deserves to be maintained but subject to certain modifications. Under Order 9 Rule 7 of the CPC the Court does have jurisdiction, while setting aside the ex-parte order to impose costs and also to put the
defendants-applicants on terms. Rule 7 of Order 9 of the CPC reads as under :-
"Rule 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.
Where the Court has adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
7. Power in the Court to impose costs and to put the defendant-applicant on terms is spelled out from the expression "Upon such terms as the Court directs as to costs or otherwise". It is settled with the decision of this Court in Arjun Singh v. Mohinder Kumar & Ors., , that on an adjourned hearing, in spite of the Court having proceeded ex parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right. An application under Rule 7 is required to be made only it the defendant wishes the proceedings to be relegated back and re-open the proceedings from the date wherefrom they became ex parte so an to convert the ex parte hearings into bi-parte. While (sic) power of putting the defendant on terms under Rule 7 the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not int he garb of exercising power of placing upon terms make an order which probably the Court may not have made in the suit itself. As pointed out in the case of Arjun Singh (supra), the purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation.
8. Costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. The terms which the Court may direct may take care of the time or mode of proceedings required to be taken pursuant to the order under Rule 7. For example, keeping in view the conduct of the defendant-applicant, the Court may direct that though the ex parte proceedings are being set aside, the defendant must file the written statement within an appointed time or recall for cross examination at his own cost and expenses the witnesses examined in his absence or that the defendant shall be allowed not more than one opportunity of adducing his evidence and so on. How the terms are to be devised and made a part of the order would depend on the facts and circumstances of a given case. In short, the court cannot exercise its power to put the defendant/applicant on such terms as may have the effect of pre-judging the controversy involved in the suit and virtually decreeing the suit though ex-parte order has been set aside or to put the parties on such terms as may be too onerous. That apart, the order of the trial court dated 9.1.1980 suffers from another infirmity of vagueness and want of clarity. In fact, during the course of hearing, the learned counsel for the parties tried to place their own respective interpretation, certainly divergent to each other, on the order of the High Court as to what it means, that is, whether the trial court directed to pay all the arrears of monthly lease and the amount being deposited along with filing of the written statement or for that month only and whether for future too, but we do not propose to deal further with this aspect as it is unnecessary. That condition in the order of trial court having been set aside by the High Court, we are inclined to sustain the order of the High Court but subject to certain modification. In our opinion the High Court was justified in setting aside the condition imposed by the trial court in its order which was too onerous, also vague, uncertain and suffering from want of clarity. The order of the High Court to the extent of setting aside the ex-parte proceedings and directing the expeditious trial of the suit has to be sustained as it serves the ends of justice. But in view of the subsequent events brought to our notice and the statement made by the learned counsel for the defendants-respondents during the course of hearing, the following directions are made:-
1. The ex-parte order dated 2.5.98, and the judgment and decree of the trial court based on the ex-parte order dated 2.5.98 are set aside. The interim order of this Court dated 28.2.2000 shall also stand vacated. The suit shall stand restored on the file of the trial court.
2. As the plaintiffs have secured the possession of suit premises and the defendants-respondents have given up their right of restitution so far as the possession of the premises are concerned, the suit filed by the plaintiff-appellants shall now be treated as a money claim for recovery of arrears as claimed in the plaint as also for recovery of arrears pending suit for the period expiring on 1.11.2000, the date on which the plaintiff-appellants have secured possession over the tenancy premises.
3. Such of the witnesses as have already been cross examined by the defendant-respondents shall not be recalled for further cross examination, in view of that right having been given by the learned counsel for the defendant-respondents before this Court. Such of the plaintiffs' witnesses as were not cross examined, shall be recalled for cross examination at the cost and expenses of the defendant-respondents.
4. The parties shall have the liberty to lead such other evidence as they propose to do.
5. The trial court may refuse to grant any avoidable adjournment at the trial which may have the effect of delaying the hearing of the suit. The suit shall be expeditiously heard and decided. The learned counsel for the defendant-respondents has assured that the defendants shall co-operate therein.
6. To avail the benefit of the orders passed by the High Court and this order the defendants shall pay cost of Rs. 30,000/- to the plaintiff-appellants within four weeks as a condition precedent.
9. During the execution of decree an amount of Rs. 20,00,000/- (Rupees twenty lakhs only) is said to have been attached by the executing court. As the ex-parte decree has been set aside and the suit stand re-opened, the plaintiff-appellants shall be at liberty to move an application for attachment before judgment of such amount and/or such other interim relief as may be available to them before the trial court. However, we express no opinion on this.
10. The appeal stands disposed of in the terms abovesaid.

application under Order 9 Rule 9 of cpc.



 Decree against plaintiff by default bars fresh suit

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.


Madhya pradesh High Court
Surajdin And Ors. vs Shriniwas And Ors.
Bench: A Mathur, D Dharmadhikari, D Misra
ORDER
D.M. Dharmadhikari, J.
1. The learned Single Judge (B. C. Verma, J. as he then was) in the course of deciding this appeal on 28-7-1983 noticed conflicting decisions of the two Division Benches of this Court on the question of the applicability of the provisions of Article 182 of the Limitation Act, 1908 and has, therefore, referred the following questions to the Full Bench for decision:
(1) Whether the word 'appeal' as used in Clause (2) of Article 182 of the Limitation Act, 1908 means an appeal from a decree which is sought to be executed or it will include even an appellate order made on refusing to set aside the exparte decree, and
(2) Whether contesting an application by judgment-debtor for setting aside an ex parte decree under Order 9, Rule 13 of the Civil Procedure Code, constitutes a step-in-aid within the meaning of Article 182(5) of the Indian Limitation Act, 1908?
2. Before pointing out the conflict of decisions between the two Division Benches of this Court, the factual background in which the two questions arise may be set out.
3. In Civil Suit No. 14-A of 1944, on 27-4-1946 the Court of Additional District Judge, Bilaspur passed the preliminary decree for foreclosure on the mortgage deed dated 11-7-1932. A period of six months was fixed in the decree for payment of the decretal amount, and on failure the plaintiff should obtain a final decree. The judgment-debtor failed to make the payment within time. On 17-2-1947, the decree-holder made an application for passing a final decree. The judgment-debtor had preferred an appeal against the preliminary decree and the passing of final decree was stayed. The said first appeal against preliminary decree was, however, dismissed in 1957. On 28-10-1958, a final decree for foreclosure was passed ex parte. On 30-10-1958, the judgment-debtor filed an application under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte final decree. The stay application was rejected on 8-5-1959 against which the judgment-debtor preferred Misc. (First) Appeal No. 98 of 1959. He also obtained stay of execution of the decree on 22-3-1960. The appeal against rejection of the application for setting aside exparte decree was, however, dismissed on 27-1-1961.
4. The decree-holder thereafter filed application for execution of final decree on 27-9-1965. According to the decree-holder, since the exparte final decree of foreclosure was subject matter of the miscellaneous appeal, the period of limitation for filing application for execution under Article 182(2) of the Limitation Act of 1908 was to commence from 27-1-1961 when the appeal of the judgment-debtor against rejection of his application under Order 9, Rule 13, Civil Procedure Code for setting aside the decree was rejected.
5. On the other hand, the case of the judgment-debtor is that under Article 182 of the Limitation Act of 1908, the period of limitation will be reckoned from the date of passing of the final decree on 28-10-1958 and the application for execution having been filed beyond the prescribed period of three years, the application is barred by time. It is contended on behalf of the judgment-debtor that the appeal of the judgment-debtor against rejection of his application under Order 9, Rule 13, Civil Procedure Code for setting aside ex parte decree is not covered by Article 182(2) of the Limitation Act because there the period of limitation is reckoned from the date of order passed in appeal only if the appeal is against an executable decree or order. It is contended that the use of the expression "Where there has been an appeal" in Article 182(2) of the Act of 1908 will not include an appeal in collateral proceedings.
6. Since the answers to the two questions referred require interpretation of the relevant entries of Article 182 of the Act of 1908, the said entries are reproduced hereunder: Description of application Period of Limitation Time from which period begins to r
un
"182. For the execution of Three years: or where a 1. The date of the
a decree or order of any civil certified copy of the decree decree or order, o r
Court not provided for by or order has been Article 183 or by section 48 registered, six years. (For of the Code of Civil the State of U. P. the words Procedure, 1908 (V of 1908) "six years" have been substituted for "three
years", by the U. P. Act 24
of 1954).
2. (whether there
has
been an appeal) t
he date
of the final decr
ee or
order of the appe
llate
Court, or the wit
hdrawal
of the appeal, or
3. (where there h
as been
a review of judgm
ent)
the date of the d
ecision
passed on the rev
iew, or
4. (where the dec
ree has
been amended) the
date
of amendment, or
5. (where the app
lication
next hereinafter
mentioned
has been made) th
e date
of the final orde
r passed
on an application
made
in accordance wit
h law
to the proper Cou
rt for
execution or to t
ake
some step in aid
of
execution of the
decree
or order, or.....
"
7. In an unreported decision of the Division Bench consisting of N. M. Golvalkar and S. P. Bhargava, JJ. (as they were then) in L.P.A. 13 of 1961 decided on 20-2-1963, the question of commencement of period of limitation arose on similar facts. The learned Judges, in the aforesaid decision, upheld the view expressed by P. K. Tare, J. (as he then was) in the order passed in the original appeal (M. A. No. 137 of 1960 decided on 16-2-1961) which had given rise to the L.P.A. decided by the Division Bench (supra). In construing the entry contained in Article 182(2), the Division Bench headed by N. M. Golvalkar, J. held that the words "where there has been an appeal" would include such collateral proceedings in appeal against an order passed under Order 9, Rule 13, Civil Procedure Code as such proceedings have a direct or immediate connection with the decree to be put into execution. The reasoning adopted is that the very decree which was put into execution was in a jeopardy and liable to be set aside in proceedings in appeal against the order rejecting the application for setting aside the ex parte decree. If the appeal had been allowed, any execution in the meantime commenced would have necessarily come to an end automatically. The Division Bench (supra) in taking the above view in the Letters Patent Appeal, took support from the observations on the subject made by the Supreme Court in the case of Bhawanipore Banking Corporation Ltd. v. Gourishankar Sharma, AIR 1950 SC 6.
8. The other Division Bench of this Court consisting of Shivdayal, C. J. and J. P. Bajpai, J. (as they were then) in a decision reported in 1978 MPLJ 272 = 1978 JLJ 245, Laxmichand Jagannath Pandey v. Challu Raisa, however, expressed a contrary opinion. The unreported decision of the Division Bench headed by Golvalkar, J. passed in the L.P.A., it appears, was not brought to the notice of the Division Bench headed by Shivdayal, C. J. in the case of Laxmichand (supra). The latter D. B., by seeking support from the same decision of the Supreme Court in Bhawanipore Banking Corporation Ltd. (supra) and a Privy Council decision reported in AIR 1932 Privy Council 165, Nagendra Nath Dey v. Suresh Chandra Dey, gave a considered opinion on a specific question referred to them and held that the word 'appeal' used in Clause (2) of Article 182 of the Act of 1908 would not include an appeal from an order made in miscellaneous proceedings under Order 9, Rule 13, Civil Procedure Code refusing to set aside the ex parte decree. The opinion expressed in the latter decision of this Court is to be found in paragraph 14, which is as under:
"It is true that if a decree-holder is required to prosecute an ex parte decree even when the proceedings for getting the same set aside are pending either at the original stage or before the appellate Court, there is always a possibility that in case of ex parte decree, being set aside, all efforts made for executing the decree will become futile but for this consideration you cannot rewrite the provisions contained in Article 182 of the Limitation Act. You cannot construe the provisions of the statute prescribing limitation de hors of the context. Similarly, you cannot read something which is not there merely on certain equitable considerations because the field covered by the statute prescribing limitation is not of one way traffic. It, on the one hand, bars the remedy and on the other hand creates a valuable right in favour of the other side due to expiry of the period of limitation. Such a right cannot be taken away by the Courts by rewriting the law in the garb of interpretation.. If it is felt that certain provisions are causing hardship and resulting in unfairness, it is for the Legislature to consider the situation and to make suitable amendments."
9. Shri Ravish Agarwal, learned counsel appearing for the decree-holders before us, strenuously made efforts to support the view expressed in the earlier unreported decision of this Court by a Division Bench headed by Golvalkar, J. On the other hand, Shri R. K. Pandey, assisted by Shri Sanjay Dwivedi, supported the later view expressed in the reported decision of this Court by another Division Bench headed by Shivdayal, C.J.
10. We have carefully examined the two conflicting views expressed by the two Division Benches and have also considered the submissions made on the interpretation of Article 182(2) of the Limitation Act. The question requires interpretation of the relevant entry in Clauses (2) and (5) of Article 182 of the Limitation Act, 1908. Looking at the relevant entry contained in Clause (2) of Article 182, in our opinion, we find that the various clauses in Article 182 cannot be read and construed in isolation from each other. All the entries in Clauses (1) to (7) and the Explanation therein have to be read in continuation and have to be construed in conjunction with each other. The normal rule of interpretation is that general words in a statute must receive general construction unless there is some thing in the Act itself such as the subject matter with which the Act is dealing or the context in which the said words are used to show the intention of the Legislature that they must be given a restrictive or wider meaning. It is quite often that the object or the subject matter or the collocation or speaking briefly the context has the effect of restricting the normal wide meaning of general words, "for words and particularly general words cannot be read in isolation, their colour and content are derived from their context". It is recognised principle of construction, observed Kapur, J. in Express Mills v. Municipal Committee, Wardha, AIR 1958 SC 341, that general words and phrases, however wide and comprehensive they may be in their literal sense, must usually be construed as being limited to the actual objects of the Act. It may in the same context be said that it is a sound rule of construction to confine the general provisions of a statute to the statute itself. "One of the safest guides to the construction of sweeping general words which it is difficult to apply in their full literal sense" stated the Privy Council, "is to examine other words of like import in the same instrument and to see what limitations can be placed on them." [See: Principles of Statutory Interpretation by Justice G. P. Singh, Sixth Edition 1996, Pages 294 to 296].
11. Thus, taking aid of the settled principles of construction, if the Clauses (1) and (2) of Article 182 are examined, it would" be seen that in Clause (1) the period prescribed for filing an application for execution is from the date of decree or order. Clause (2) in continuation states that "where there has been an appeal", the date of the final decree or order of the appellate Court would be the date of commencement of the decree. The two Clauses (1) and (2) in Article 182 in the context of the period of limitation have to be read in conjunction with each other and not in isolation. Clause (1) speaks of date of the decree or executable order. The Clause (2), therefore, refers to an appeal against the decree or the executable order. The word "appeal" in Clause (2) of Article 182 cannot be read and construed to mean even other kinds of appeals which are not against the decree or executable order. The appeal in collateral proceedings such as under Order 9, Rule 13, Civil Procedure Code for setting aside ex parte decree, in our opinion, are not covered within the word "appeal" in Clause (2) of Article 182 because the word "appeal" therein, in the context, refers only to appeal against a decree or executable order mentioned in Clause (1). In thus interpreting the relevant entry in Clause (2) of Article 182, we find great support from the decision of the Supreme Court in the case of Bhawanipore Banking Corporation Ltd., AIR 1950 SC 6 (supra). In the Supreme Court case, in a suit instituted to enforce a mortgage, after a preliminary decree was passed, the judgment-debtors made an application under section 36 of the Bengal Money-lenders Act for reopening the preliminary decree. That application was dismissed in default. The judgment-debtor then made an application under Order 9, Rule 9, Civil Procedure Code for restoration of their application under the Money-lenders Act. That application was also dismissed. The question arose before the Supreme Court was whether the period of limitation can be said to have commenced from the date of rejection of the appeal against the order made on the application under Order 9, Rule 9, Civil Procedure Code. It is in that context that Article 182, Clause (2) came up for consideration before the Supreme Court and in paragraph 5 of the judgment it has been held that an appeal from the order dismissing the application under Order 9, Rule 9, Civil Procedure Code is not included within the word "appeal" used in Clause (2) of Article 182, Paragraph 5 of the said decision read thus:
"It was also suggested by the learned counsel for the appellant that the case might be held to be covered by Clause (2) of Article 182 on the ground that even though no appeal was preferred from the final mortgage decree, the words "where there has been an appeal" are comprehensive enough to include in this case the appeal from the order dismissing the application under Order 9, Rule 9, Civil Procedure Code, made in connection with the proceedings under section 36, Money-lenders Act. This argument also is a highly far-fetched one, because the expression "where there has been an appeal" must be read with the words in Col. 1 of Article 182, viz., "for the execution of a decree or order of any Civil Court..." and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution."
12. The decision of the Supreme Court in Bhawanipore Banking Corporation Ltd. (supra) was referred and relied on by the earlier Division Bench in its unreported decision particularly laying emphasis on the last part of the above-quoted observations, it was stated that in the Supreme Court case, the collateral proceedings under Bengal Money-lenders Act had no direct or immediate connection with the decree under execution, but in a case where the proceedings are under Order 9, Rule 13, Civil Procedure Code, the decree itself is in jeopardy. The Supreme Court decision was thus distinguished. On a closer examination of the provisions contained in Article 182 and the above quoted observations of the Supreme Court, we do not find that the distinction made in the former Division Bench decision of this Court has any substance. Where there are collateral proceedings in a suit, the possibility of the decree itself being set aside is never ruled out. In the Supreme Court (supra) also as the facts have been stated above, the application under Money-lenders Act was for reopening of preliminary decree. That would have definitely affected the final decree as also its execution. The words underlined in the observations of the Supreme Court quoted above, therefore, could not have been taken aid of by the earlier Division Bench of this Court in its unreported decision for holding that appeal arising out of proceedings under Order 9, Rule 13, Civil Procedure Code is covered within the word 'appeal' used in Clause (2) of Article 182 of the Act of 1908.
13. As has been rightly observed in the above quoted portion of the reported decision of the Division Bench headed by Shivdayal, C. J., a wider meaning to the word "appeal" used in Article 182(2) could not have been given contrary to the settled canon of constructions. Clauses (1) and (2) and other Clauses in Article 182 have to be read in conjunction and together and not in isolation. If they are so read and construed, the reasonable conclusion is that in the word "appeal" in Clause (2), only appeals against decree and executable order mentioned in Clause (1) alone are included and not other appeals arising out of collateral proceedings including one under Order 9, Rule 13, Civil Procedure Code. The equitable consideration that has been applied as an additional reasoning by the former Division Bench is foreign to statute like Limitation Act which requires strict construction. The following observations of the Privy Council in the case of Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 Privy Council 165 enforce the view taken by us:-
"Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article: "where there has been an appeal", time is to run from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think the only safe guide. It is at least an intelligible rule that so long as there is any question subjudice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court. But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of 24th June, 1920, time only ran against the appellants from 24th August, 1922, the date of the appellate Court's decree. They are therefore in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on 4th August, 1924 was right."
14. The later part of the observations made above by the Privy Council were because of the peculiarity of the facts therein. There, there was regular appeal, but it was defectively framed and all parties were not joined. The appeal was defective and came to be rejected on subsequent date. It is on those facts that it was held that the period of limitation would run from the date of rejection of that appeal.
15. As far as the question No. 2 referred to above is concerned, based on Clause (5) of Article 182, we find no difficulty in answering it in the negative against the decree-holder. A pending application under Order 9, Rule 13, Civil Procedure Code by the judgment-debtor and the consequent proceedings taken in appeal resulting in its rejection cannot by any stretch of imagination be held as "steps taken in aid of execution" of the decree by the decree-holder. The plain language of Clause (5) itself deserves answer of question No. 2 in the negative against the decree-holder.
16. To conclude, our answers to the two questions are in the negative as under:
(1) The word 'appeal' as used as Clause (2) of Article 182 of the Limitation Act, 1908 means an appeal from a decree or an order which is sought to be executed. It will not include an appeal made against an order refusing to set aside ex parte decree under Order 9, Rule 13 of the Civil Procedure Code.
(2) Contesting of an application by the judgment-debtor for setting aside an ex parte decree under Order 9, Rule 13, Civil Procedure Code does not constitute step-in-aid within the meaning of Article 182(5) of the Limitation Act, 1908.
16. Let the case now be listed before the appropriate Bench for deciding the appeal on merits in the light of the answers given by us to the two questions referred. The costs of the present proceedings shall abide the ultimate result of the appeal on merits.