OFFICIAL RECEIVER BANGALORE Vs. SELLAMMA

JUDGEMENT

(1.) The above two Civil Revision Petitions are filed against a common order passed in Misc. Case Nos.187 and 189 of 1967 on the file of the Principal Civil Judge, Bangalore, on the two applications filed by the respondent in each of the above petitions under Or.9, R.13 of the CPC, praying for the setting aside of the ex-parte decree that had been passed in O.S. No.274 of 1964 on the file of the said Court. By its order dt.6-12-1969 the lower Court allowed both the applications setting aside the preliminary decree and final decree passed in the said suit. The said suit was originally filed in the Court of the District Judge, Bangalore, in O.S. No.58 of 1949- 50, on the basis of a registered mortgage deed executed by defendants 1 & 2 therein for recovery of a sum of Rs. 31,725 which was due on the mortgage deed by way of principal and interest thereon. The petitioner in Misc. Case No.187 of 1967 is one B. N. Leelabai and she had been impleaded as the 12th defendant in the said suit. The petitioner in Misc. Case No. 189 of 1967 is one K. R. Varadaraja Iyengar and he had been impleaded as 15th defendant in the said suit. The said Leelabai and Varadaraja lyengar had purchased some portions of the land which was the subject matter of the mortgage on the basis of which the suit was filed in O.S. No.58 of 1949-50 on the file of the District Judge, Bangalore. The order sheet dt.28- 2-1950 in the said suit states that defendants 12 and 15 among others had been served on residence as they were not in station. We do not find any specific order made by the trial Court either treating them ex parte or directing issue of fresh summons, but there is no reference to defendants 12 and 15 in the order sheet of that suit subsequent to 28-2-1950. It appears that some of the defendants in the said suit contested the suit and by his judgment dt.30-6-1960, the suit was decreed by the District Judge. Against the said decree, the plaintiff filed an appeal in R.A. No.66 of 1961 on the file of this Court regarding the rate of interest only. This Court allowed the appeal modifying the decree passed by the trial Court by directing that the rate of interest from the date of suit upto the date fixed for payment, namely, 30-12-1960 should be calculated at nine per cent instead of at four per cent per annum. In the said appeal, Leelabai and Varadaraja Iyengar were again absent and not represented and there is no dispute that they had been placed ex-parte by this Court in the appeal. Thereafter the case was sent back for passing the final decree to the Court of the Civil Judge, Bangalore City, which had acquired jurisdiction on account of the re-organisation of the Civil Courts in the State of Mysore under the Mysore Civil Courts Act, 1964. The case was numbered as O.S.274 of 1964 on the file of the Civil Judge, Bangalore. The learned Civil Judge, proceeded to pass the final decree in accordance with the judgment and decree passed by this Court in appeal, on 13-4-1966. After the final decree was passed the property against which the said mortgage decree had been passed was brought to sale in Execution No.53 of 1967 on the file of the Civil Judge, Bangalore. Pursuant to the order of sale made by the Civil Judge, a notification was published in "Prajavani" a local daily, on 11-7-1967 stating that the mortgaged property including the portions which Leelabai and Varadaraja lyengar had purchased would be sold in public auction in order to realise the decree amount as per the final decree in the said suit. At that stage Leelabai and Varadaraja lyengar filed Misc. Case Nos.187 and 189 of 1967 respectively on the file of the Civil Judge, Bangalore, praying that the ex-parte preliminary decree and final decree passed against them in the suit might be set aside, under Or.9, R.13 of the CPC. It was alleged by them that they had no knowledge of the preliminary decree and final decree passed in the said suit until they saw 'Prajavani' dt 11-7-1&67, and, therefore, the applications filed by them on 10-8-1967 were in time. The said applications were resisted by the plaintiff. It may be mentioned here that by that time, the plaintiff was dead and his estate was under the management of Sri C. L. Shivappa, Advocate and Official Receiver, Bangalore, by an order passed by the competent Court. In the course of the statement of objections, it was stated by him, inter alia, that it was not true that the applicants had no notice or knowledge of the preliminary decree or final decree ti]l 11-7-1P67 and that the applications were not maintainable in view of the fact that the preliminary decree had been modified by the High Court in appeal. It was urged that the trial Court had no jurisdiction to deal with the applications under Or.9, R.13 of the CPC. After recording the evidence adduced by the parties and hearing them, the lower Court passed a common order setting aside the preliminary decree and the final decree passed in the suit. The lower Court while allowing the said applications found that it had been established that the applicants did not know about the preliminary decree and the final decree passed in the suit and the decree passed in the appeal till 11-7-1967 and that the applications were maintainable before the lower Court even though the preliminary decree had been modified by the High Court in R.A.No.66 of 1961. Aggrieved by the common order passed on the two applications, these two revision petitions have been filed on behalf of the estate of the plaintiff by the Official Receiver.

(2.) When these two revision petitions came up before Datar, J., for disposal, he referred them for disposal by a Division Bench on the ground that they involved substantial questions of law and that there was divergence of opinion on the questions involved in these cases amongst the several High Courts in India, and that is how these two petitions are before us. Sri H. Nanjunda Sastry, the learned Counsel for the petitioner in these two cases, did not question, in the course of his arguments, the findings of fact recorded by the Court below that Leelabai and Varadaraja Iyengar, the respondents herein, had no knowledge of the passing of the ex-parte preliminary and final decree by the lower Court and the decree passed in appeal until 11-7-1967. He has however raised two questions of law, namely, (i) that the lower Court had no jurisdiction to entertain the application under Or.9, R.13 CPC when the preliminary decree passed by the trial Court had been modified by the decree passed in appeal by this Court, and (n) even if the said applications were maintainable before the lower Court, the order passed by the Court below setting aside the preliminary decree and the final decree in the suit in their entirety was wrong.

(3.) In support of his first contention Sri Sastry relied upon a number of decisions. The first decision is one in Brij Narain v. Tejbal Bikram Bahadur, ILR 22 All. 295. The question for consideration in that case was whether a decree of the trial Court could be amended by it after the said decree had been modified in appeal by the appellate Court. We are of the opinion that this decision is beside the point which has arisen for consideration in the present case. The next decision on which reliance was placed was one reported m Mono Mohan Kundu v Nripendra Nath Nandi, AIR 1937 Cal. 548. The facts of that case were these:-A preliminary decree was passed in a suit after contest against defendants 2, 3, 4 and ex-parte against defendants 1, 5, 6 & 7 and the decree was made final on 26-3-1929. Thereafter defendants 2, 3 & 4 filed an appeal before the High Court on 23-5-1929. In June 1929 defendant 6 filed an application for setting aside the ex-parte decree passed against him under Or.9, R 13 CPC and on 27-7-1929 defendant 1 filed another application for setting aside the ex-parte decree passed agamst him. The appeal filed before the High Court by defendants 2, 3 and 4 was disposed of on 7-6-1933 allowing the appeal of defendant 4 and dismissing the suit against him and confirming the decree of the trial Court in other respects.