Jagannath Roy vs Mohendra Nath Mukherjee

Das Gupta, J.—These two appeals are against the decision of the learned subordinate Judge, 2nd Court, Hooghly, on an application under Order IX, Rule 13 of the CPC and u/s 151 of the said Code. The Respondents Mohendra Nath Mukherjee and others had filed an application u/s 38 of the Bengal Money-Lenders Act, 1940, on June 21, 1947, immediately after receipt of a letter of demand from the solicitors Messrs. B.N. Basu and Co. with regard to the loans, mentioned in the letter as taken from. Jagannath Roy and Boloram Roy. The orders as recorded in the order sheet of the learned subordinate Judge show that notice of this application was served on all the three opposite parties, but as they did not appear, the case was taken up for hearing ex parte. The case was finally disposed of on October 10, 1947, and an order was passed declaring the different amounts due on the different hand-notes mentioned in the petition.

The case sought to be made by Kumar Promotha Nath Roy and his sons Jagannath and Balaram in the application under Order IX, Rule 13 of the CPC is that no notice was served on any of them and that they were prevented by sufficient cause from appearing before the Court. The applicants prayed that the ex parte decree might be set aside under Order IX, Rule 13 of the CPC and also mentioned Section 151 of the CPC as the section under which the same relief might be given to them.

The learned subordinate Judge on a consideration of the evidence came to the conclusion that the notice of the application had been properly served and that even apart from that they had full knowledge of the application u/s 38 of the Bengal Money-Lenders Act and deliberately refrained from appearing in Court. He held that no case had been made out for setting aside the decree under Order IX, Rule 13 of the CPC and accordingly dismissed the application. He did not in his order mention anything in so many words as regards Section 151 of the Code of Civil Procedure.

These appeals have been preferred to this Court on the basis that an application under Order IX, Rule 13 of the CPC did properly lie and it has been argued that the application has been wrongly dismissed. It was contended before us by Mr. Chakravarti on behalf of the Respondents that the provisions of Order IX, Rule 13 of the CPC had no application to an ex parte order passed in an application u/s 38 of the Bengal Money-Lenders Act. In my judgment, this contention should prevail. Sub-Sections 2 and 3 of Section 38 lay down the extent to which the CPC will have application. Sub-Section 2 provides that in taking accounts u/s 38 of the Bengal Money-Lenders Act the Court should follow the same procedure as it does in regard to civil suits. Sub-Section 3 which is more important for our purpose provides that:

A declaration under this section shall be subject to appeal, if any, as if it were a decree of the Court and every decision in appeal shall be subject to appeal to the High Court in the same manner as a decree passed in appeal.

It is important to notice that the declaration that is made u/s 38 of the Bengal Money-Lenders Act is not a decree but it is subject to appeal as if it were a decree. The words "as if it "were" make it clear that the declaration has not all the characteristics of a decree. Order IX, Rule 13 of the CPC provides for setting aside ex parte decrees in certain circumstances. As the declaration made is not a decree the provisions of Order IX, Rule 13 can have no application.

Mr. Gupta contended that if Order IX, Rule 13 of the CPC has no application, it was a proper case where the Court should exercise its powers u/s 151 of the Code of Civil Procedure. There can be no doubt that if it was found as a fact that a party was prevented by sufficient cause from appearing at the hearing, whether after due service of notice or not, the Court would interfere u/s 151 of the CPC in cases of this nature in view of the fact that the usual remedy under Order IX, Rule 13 of the CPC as regards decrees is not open to this person. The exercise of the inherent jurisdiction of the Court u/s 151 of the Code is not however to be lightly made. In this case, the learned Judge has come to the conclusion that the notice of the application u/s 38 of the Bengal Money-Lenders Act was properly served. The fact of the service has not been seriously disputed before us, but Mr. Gupta has contended that the service of the notice that appears at p. 14, pt. II of the paper-book, was not a proper compliance with the section. Section 38 provides that on receipt of the application "the Court shall cause "a notice thereof to be served on the lender". Mr. Gupta has argued, and in my opinion, rightly, that this requires something more than a mere notice of the fact that an application u/s 38 of the Bengal Money-Lenders Act has been made. Notice of the application is not the same thing as the notice of the fact of the application. In my judgment, the section requires notice to be given of the main facts on which the application is being made.

It is clear that in this case that was not done. That, however, cannot alter the fact that the present Appellants had received the letter, a copy whereof has been made marked as Ex. C(1) in which Mahendra Nath Mukherjee is informing the solicitors in reply to the solicitor''s letter of demand of June 18, 1947, that an application u/s 38 of the Bengal Money-Lenders Act has been filed. It is quite clear that this letter to the solicitors referred to the demand that had been made in the letter, Ex. C. When the present Appellants received the letter, Ex. C(1), they knew all that was necessary for them to know about the application u/s 38 of the Bengal Money-Lenders Act. That letter is dated June 21, 1947, and it was received, as appears from Ex. G, on June 22, 1947. The Appellants decided to take no action in the matter for the long period of four months and it was in these circumstances that the case was decided ex parte. Even after the case was decided ex parte the Petitioners waited another six months before filing an application under Order IX, Rule 13 of the Code of Civil Procedure.

There can be no gainsaying the fact that the Appellants, for reasons of their own, deliberately refused to appear before the Court. When, therefore, Mr. Gupta asks us to hold that justice demands that they should get another opportunity of contesting the application u/s 38 of the Bengal Money-Lenders Act and that if sufficient costs are paid to the Respondents they can have nothing to complain, I find it impossible to agree. As I have already stated, the exercise of our powers under the inherent jurisdiction has to be carefully made. When a party deliberately refrains from assisting the Court in deciding a matter, it does not lie in his mouth to come later and say that he will pay the other party fair costs and the whole thing should be reopened. To interfere u/s 151 of the Code in a case of this nature is bound to have dangerous consequences, as it will really mean a direct encouragement to unscrupulous litigants to harass parties who cannot be so fortunate financially as they. In my judgment, the conduct of the Appellants themselves offers sufficient reason for not interfering in the present case. Even if the learned Court below may be considered to have wrongly omitted to consider the application u/s 151 of the Code, we do not think that there is any justification either for our sending the case back to it for considering that part of the application or for any interference by this Court u/s 151 of the Code of Civil Procedure.

I would, therefore, dismiss the appeals with costs.

Lahiri, J.

I agree.