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2008 DIGILAW 1462 (PAT)

Sampat Kumar Singh v. Ram Janam Ram

2008-09-18

CHANDRAMAULI KR.PRASAD, RAVI RANJAN

body2008
Judgment Chandramauli Kr.Pd. and Ravi Ranjan JJ. 1. This case has come up before us on a reference made by the learned Single Judge. 2. Facts lie in a narrow compass. Plaintiff filed Mortgage Suit No. 77 of 1994 for a declaration that the defendant has no right to redeem the mortgaged property. In the suit, the defendant appeared on several dates but did not file the written statement. The learned Judge, in seisin of the suit, pronounced the judgment and a decree was accordingly drawn under Order 8 Rule 10 of the Code of Civil Procedure. Defendant filed application under Order 9 Rule 13 of the Code (hereinafter referred to as the Code) for setting aside the decree. The learned Munsif, 1st, Sasaram, by order dated 25.1.2000 passed in Miscellaneous Case No. 35 of 1996 rejected the said application, inter alia, holding that a decree passed in terms of Order 8 Rule 10 of the Code cannot be set aside under Order 9 Rule 13 of the Code. Defendant preferred appeal and the 5th Additional District Judge, Rohtas, Sasaram by judgment dated 22nd December, 2001, dismissed the appeal. While dismissing the appeal the Appellate Court observed as follows: "I find and hold that the petition under Order 9 Rule 13 C.P.C. read with Section 151 C.P.C. filed by the appellant vide Misc. Case No. 35/96 for setting aside the judgment and decree passed under Order 8 Rule 10 C.P.C. by the learned court below in T.S. No. 77/94 is not at all maintainable and the impugned order of the learned court below in consonance of my aforesaid finding is proper, legal and valid and it does not require any intervention of this court in exercise of its appellate jurisdiction." 3. Aggrieved by the same, defendant preferred this Civil Revision application. The matter came up for consideration before a learned Single Judge on 7th May, 2004 and finding conflict of opinion between the two Single Judge decisions in the case of Sri Sri 108 Narashing Bhagwan Thakurbari vs. Tej @ Tek Narain Singh, 2000(3) B.L.J. 268 and in the case of Satya Narayan Sah vs. Brij Gopal Mundra, AIR 1991 Patna 60, had referred the matter for decision by a Division Bench. This is how the matter has come up before us. 4. Mr. This is how the matter has come up before us. 4. Mr. Anjani Kumar Sinha, appearing on behalf of the defendant-petitioner submits that pronouncement of judgment followed by decree in the absence of the defendant under Order 8 Rule 10 of the Code is an ex-parte decree and an application to set aside the same is maintainable under Order 9 Rule 13 of the Code. Mr. Sudama Singh, appearing on behalf of the plaintiff-opposite party, however, contends that judgment followed by decree under Order 8 Rule 10 of the Code is not an ex-parte decree and the natural corollary of the same is that an application to set aside the same under Order 9 Rule 13 of the Code, shall not be maintainable. 5. In view of aforesaid, the point which needs to be considered is as to whether a judgment and decree passed under Order 8 Rule 10 of the Code can be considered as an ex-parte decree. The expression "ex-parte decree" has not been defined in the Code and therefore, the aforesaid expression has to be understood in the context it is used. Order 8 Rule 10 of the Code of Civil Procedure provides that in case the defendant fails to present the written statement within the time permitted or fixed by the Court, the court shall pronounce judgment and on the pronouncement of such judgment a decree shall be drawn. Thus a decree passed under Order 8 Rule 10 of the Code when written statement is not filed is an ex-parte decree. We are of the opinion that in the face of the language of Order 8 Rule 10 of the Code of Civil Procedure and that of Order 9 Rule 13 restricted meaning to the words "ex-parte decree", is not fit to be given. It is worth mentioning that Order 9 Rule 13 uses the expression "in any case" and in the background thereof, it is difficult to hold that a degree passed in terms of Order 8 Rule 10 of the Code is not an ex-parte decree and not covered under Order 9 Rule 13 of the Code. 6. It is worth mentioning that Order 9 Rule 13 uses the expression "in any case" and in the background thereof, it is difficult to hold that a degree passed in terms of Order 8 Rule 10 of the Code is not an ex-parte decree and not covered under Order 9 Rule 13 of the Code. 6. There is a large number of decisions which take similar view and reference in this connection can be made to a decisions of the Delhi High Court in the case of Gujarat Co-operative Oil Seeds Growers Federation vs. Smt. Ramesh Kanta Jain, AIR 1994 Delhi 367, M/s M. Manick Peter and Others vs. K. Surendranathan, AIR 1988 Kerala 161, A.K.P. Haridas vs. V.A. Madhavi Amma and Others, AIR 1988 Kerala 304, N. Jayaraman vs. M/s Glaxo Laboratories India Limited, Madras, AIR 1981 Madras 258, M/s Kuvarp Industries, Bangalore and Ors. vs. State Bank of Mysore, AIR 1985 Karnataka 77, Narendra Patra vs. Shiba Narayan Taldi, AIR 1995 Orissa 45. 7. It is relevant here to state that placing reliance on the aforesaid judgments, a learned Single Judge of this Court, in the case of Sri Sri 108 Narshing Bhagwan Thakurbari (supra), has held that a decree passed under Order 8 Rule 10 of the Code is an ex-parte decree and an application for setting aside the same can be filed under receipt/production of a copy of this order. 8. In the result, the application is allowed, impugned orders are set aside and the matter is remitted back to the court of learned Munsif, 1st, Sasaram for decision on merit in accordance with law. In facts and circumstances of the case, there shall be no order as to costs.