1961 (9) TMI 106 - HC - Indian Laws

Summary

Issues:
1. Setting aside a final ex parte decree passed without notice.
2. Application under Order 9, Rule 13, C.P.C. for setting aside the final decree.
3. Interpretation of Article 164 of the Limitation Act regarding the issuance of summons.

Analysis:

The judgment by Mithan Lal, J., of the Allahabad High Court dealt with a civil revision filed by the defendant challenging the final ex parte decree passed without notice. The plaintiffs initiated a suit for partition, and after a series of legal proceedings, a final decree was passed without informing the defendant or their counsel. The defendant later applied under Order 9, Rule 13, C.P.C. to set aside the final decree on the grounds of lack of notice. The lower courts dismissed the application citing the defendant's contestation of the case and delay in filing the application. The revision was filed against these findings.

The primary contention raised was the necessity of notice before passing a final decree, especially after the receipt of the partition scheme from the revenue court. The Court acknowledged the absence of a specific provision mandating notice but emphasized the importance of natural justice. Relying on the principle of natural justice, the Court held that parties should have been informed of the partition scheme, and their objections invited after proper notice. Citing the case of Durga Prasad v. Met Ram, the Court emphasized the need to set aside ex parte decrees passed without adequate notice.

The judgment referenced two cases from 1958 to support the requirement of notice before passing a final decree. In the case of Baljit Singh v. Munnu Lal, it was held that even in the absence of a specific provision for notice, issuing a notice to the concerned parties is essential. Similarly, in Prabhu Dayal v. Sub-Divisional Officer, Karvi, the Court stressed the importance of considering the rights of the parties and the principles of natural justice in final decree preparations. The Court highlighted that a final decree without notice could be set aside through an application under Order 9, Rule 13, as it is considered an ex parte decree.

Regarding the interpretation of Article 164 of the Limitation Act, the Court rejected the argument that subsequent non-service of summonses or notices could fall under the purview of the article. The Court clarified that the word "summons" in the article refers to summonses served for the first hearing of the suit. Therefore, subsequent non-service of summonses or notices does not reset the limitation period. The judgment concluded by allowing the revision, setting aside the lower court orders and the final decree, and directing the trial court to readmit the case, reopen proceedings for the final decree, and provide an opportunity for parties to contest the partition scheme.