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1954 DIGILAW 134 (KER)

Thommas v. Travancore Forward Bank Ltd.

1954-08-16

KOSHI, KUMARA PILLAI, SUBRAMONIA.IYER

body1954
Judgment :- 1. This revision is directed against the concurrent orders of two courts below, dismissing the petitioner's application to set aside the ex parte decree against him, in O.S. 105 of 1124 on the file of the Meenachil District Munsiff's Court, as barred by time. The said decree was passed exparte on 27.12.1948, but the application under O. IX R. 13, C.P.C. to set aside the decree was made only on 30.6.1940. The petitioner alleged that he came to have knowledge of the passing of the decree just three days before the presentation of the application. The Courts below have concurrently found that the suit summons has personally been served on the applicant (the defendant). The date of the knowledge of the passing of the decree had therefore no relevance for the disposal of the application. Where the summons is personally served on the defendant column 3 of Art. 149 of the Travancore Limitation Act (Act VI of 1100) makes the date of the decree the terminus a quo for an application for an order to set aside the decree passed exparte. The petition has therefore rightly been dismissed by the Court below. 2. When this revision came up for disposal before one of us, it was referred to a Full Bench for decision in view of a conflict of opinion regarding the true construction of Art. 482 of the Civil Courts' Guide (Travancore). One of the grounds the petitioner urged to re-open the suit was, that in contravention of note (1) of the said Article the decree was passed before twenty clear days expired after the service of the summons. It is common ground that on 27.12.1948 when the decree was passed seventeen days alone had elapsed after the service of the summons on the defendant, the revision petitioner. It is not clear from the two orders before us whether the view that the petitioner's application was barred by time was on the basis that the terminus a quo for it was the date of the decree or the date when the petitioner got knowledge of the passing of the decree. Be that as it may, both the lower courts have expressed the view that the provision in note (1) of Art. 482 of the Civil Courts' Guide is only directory and mandatory. This is opposed to the view taken in Sulaihaummal v. Noohookannu Lebba, 1952 K.L.T. 665. Be that as it may, both the lower courts have expressed the view that the provision in note (1) of Art. 482 of the Civil Courts' Guide is only directory and mandatory. This is opposed to the view taken in Sulaihaummal v. Noohookannu Lebba, 1952 K.L.T. 665. This decision was, however, not followed by a Division Bench in C.M.A. No. 223 of 1953 (unreported). It is an account of this conflict that the revision was referred for decision by a Full Bench. 3. The decision in 1952 K.L.T. 665 has revised practically all the decisions of the Travancore High Court bearing on the point and also referred to the Cochin decisions upon the analogous provision in R. 237 of the Cochin Civil Rules of Practice. The purport of the decision in 1952 K.L.T. 665 is that what the rule making authorities in the two States did in enacting these provisions was to prescribe in terms of days what would constitute "sufficient time" within the meaning of O. IX R. 6 C.P.C. to enable a defendant to appear and answer to the suit on the day fixed in the summons so that the court may postpone the hearing of the suit to a future date and direct notice of such posting to be given to the defendant without waiting in every case to enquire and decide whether the defendant had sufficient time to enter appearance after the summons was served on him. Note (iii) to Art. 482 of the Civil Courts' Guide makes it amply clear that the purpose of the provision in note (i) is what has been explained in the above decision. Note (iii) states: "The Bench clerk should note in the day's cause list whether the time allowed in note (i) has elapsed so that the case may not be proceeded with in contravention thereof." 4. When the purpose of the rule is what it has been explained to be in 1952 K.L.T 665 we cannot agree with the view taken in the cases followed in C.M.A. 223 of 1953 (25 T.L.J. 1217 and 29 T.L.J. 1201) that when there is contravention of the rule, to have the decree set aside, the defendant must satisfy that after the service of the summons on him there was not sufficient time to enable him to enter appearance in court and make his answer to the suit. There is no independent discussion of the question in the decision in C.M.A. 223 of 1953 and that decision would seem to have misunderstood the 1952 K.L.T. decision to have held that the decree passed in contravention of the Article would be invalid or void. All that the 1952 K.L.T. decision says is that the contravention would in itself constitute "sufficient cause" for non-appearance when the suit was called on for hearing. 5. It has been brought to our notice that the two decisions of the Travancore High Court cited above were followed in a later case not referred to in 1952 K.L.T. 665. That is a decision by a learned single judge and is reported at page 61 of 31 T.L.J. The two Cochin cases, (8 Cochin 317 and 11 Cochin 23) referred to in 1952 K.L.T. 665 were followed in 27 Cochin 626 and there it has been explained that the ground of the decision in the two earlier cases was that when there was a contravention of the rule the defendant should be taken to have been prevented by sufficient cause from appearing when the suit was called on for hearing. Sahasranama Ayyar, J. (as he then was) who delivered the leading judgment in the case observed: "But then the substantial ground of the decision in 8 Cochin and XI Cochin would appear to have been not so much that the service of the summons in those cases was not due services as that the defendant should be taken to have been prevented by sufficient cause from appearing when the suit was called on for hearing. That, in our opinion, is a position which is unassailable, in view of S. 96(c) (O. IX, R. 6) which enacts that: "If it is proved that the summons was served on the defendant but not in sufficient time to enable him to appear and answer on the day fixed in summons, the Court shall postpone the hearing of the suit to a future day, to be fixed by the Court, and shall direct notice of such day to be given to the defendant". "It will be useful in this connection to turn to S. 104 (O. IX R.13). There are two facts mentioned therein, the existence of either of which entitles the defendant, to have the exparte decree passed against him, set aside. "It will be useful in this connection to turn to S. 104 (O. IX R.13). There are two facts mentioned therein, the existence of either of which entitles the defendant, to have the exparte decree passed against him, set aside. They are (1) that the summons was not duly served and (2) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Both these facts are put upon the same footing and the section enacts "that the court shall pass an order to set aside the decree". The lower court's view must, therefore, be upheld, viz., that the petitioner is entitled to have the exparte decree passed against him, set aside." 6. When the Code enjoins that when on the date fixed for the appearance of the defendant if sufficient time had not elapsed after the summons was served on him, the court shall postpone the date of the hearing and shall direct notice of such adjourned hearing to be given to the defendant and the rule making authority has chosen to fix "sufficient time" in terms of days, in our view, non-compliance with the rule, without more, would entitle the defendant to have the exparte decree against him set aside. Note (i) of Art. 482 is as follows: "The date of first hearing shall be so fixed as to allow the defendant respondent or counter-petitioner in original suits, small causes, appeals and original petitions in the District Court, not less than 30 clear days from the date of service of summons or notice, and the defendant or counter-petitioner in the Munsiff's Court in original suits and Original Petitions, not less than 20 clear days and in small causes, not less than 10 clear days from the date of service of summons or notice." 7. The words of the note are peremptory and they give no discretion to the court. "The rule is, that provisions with respect to time are always obligatory unless a power of extending the time is given to the Court ...." per Grove, J. in Barker v. Palmer (1881-2) 8 Q.B.D. 9. It is instructive to quote here the relevant portion of the head note to that case. "The rule is, that provisions with respect to time are always obligatory unless a power of extending the time is given to the Court ...." per Grove, J. in Barker v. Palmer (1881-2) 8 Q.B.D. 9. It is instructive to quote here the relevant portion of the head note to that case. "By O. VIII R. 7 of the Country Court Rules, 1875, "the summons in an action brought to recover lands shall be delivered to the bailiff forty clear days at least before the return day, and shall be served thirty-five clear days before the return day thereof". The plaintiff in an action in the country court to recover lands delivered the summons to the bailiff thirty-nine clear days, and the bailiff served it upon the defendant thirty-eight clear days, before the return day. At the hearing the country court judge ruled that the service was good, and tried the case, giving judgment for the plaintiff: Held, that the provision in R. 7 with respect to the time of delivering the summons to the bailiff was obligatory and not merely directory, and therefore that the judge ought not to have tried the case." 8. A passage from Black on Judgments (Vol. I) may be quoted here with advantage. At page 120 (Second Edition) paragraph 85 on Premature Entry of Default opens thus: "A judgment rendered by default before the expiration of the time allowed to him (defendant) for filing a plea or answer, is irregular and voidable at his instance. He has the whole of the last day in which to plead, and cannot be said to be in default until that day has fully expired; and if the last day falls upon a Sunday or a holiday, he is entitled to the while of the next succeeding day. But a judgment thus prematurely entered is not absolutely void; if the defendant takes no steps to correct the error, he is presumed to have waived it." 9. We are pronouncedly of the opinion that the decision in 1952 K.L.T. 665 construes Art. 482 of the Civil Courts' Guide correctly and that the decision in C.M.A. 233 of 1953 and the cases followed there do not give a true construction to the said Article. 10. This view, however, is of no avail to the petitioner as his application under O.IX, R.13 C.P.C. fails on the ground of limitation. 10. This view, however, is of no avail to the petitioner as his application under O.IX, R.13 C.P.C. fails on the ground of limitation. The petitioner's contention that an exparte decree passed in contravention of the Article (482) is absolute nullity is thoroughly unacceptable to us. It was an irregular exercise of jurisdiction to have passed the decree in violation of the provisions of the Article, but all the same the court had inherent jurisdiction to pass a decree in the suit. A decree passed by a competent court irregularly is only voidable liable to be made void when a person who has a right to proceed in the matter takes the proper steps to have invalidity declared. A voidable decree carried with it the means of its own overthrow, but unless and until it is duly annulled it would have all the force of a valid decree. The passage quoted above from Black on judgment makes the point clear. The application to get the exparte decree vacated not having been made within the time prescribed by Art. 149 of the Limitation Act (Travancore) it was rightly dismissed by the Courts below and we affirm their decision. 11. The Revision is dismissed and the petitioner will pay the counter-petitioner Bank their costs before this Court. Order accordingly. Dismissed.