Shamsher Narain Singh and others vs Mohammad Sale

Kulwant Sahay, J.—These two applications arise out of an order passed by the Munsif of Bihar setting aside two ex parts decrees on an application of the defendant under Order IX, rule 13 of the Civil Procedure Code. The decrees were obtained by the plaintiffs-petitioners on the 6th of January, 1020. These decrees were ex parte as the defendant did not appear and contest the suits. IN execution of these decrees the holding was sold on the 18th of May 1920 and purchased by the plaintiffs. The sale was confirmed on the 18th of June 1920 and possession was delivered to the auction-purchasers on the 6th of July, 1920. The present applications in the two suits under Order IX, rule 13 of the CPC were filed on the 9th of January 1924 the allegation being that the defendant came to know of the decrees and of the sale for the first time on the 11th of December 1923.

The opposite party''s case was that he was in the territories of the Nizam ''of Hyderabad as he was in service there and returned home in April 1923, and he had no information of the institution of the suits or of the decrees, or of the execution proceedings or sale of the holding. The learned Munsif has considered the evidence in very great detail and he has come to the conclusion that the opposite party had no knowledge of the suits and summonses were not served upon him. As regards limitation he has found that the opposite party came to know of the decrees and the sale within thirty days of the applications. There was another objection on the ground of limitation by reason of the fact that one of the plaintiffs Taluka Prasad was dead and his hairs were brought on the record for the first time on the 1 10th of March 1924, and it was contended that so far as the heirs of Taluka Prasad were concerned, the applications were evidently barred by limitation. The learned Munsif has found that it was not necessary for the opposite party to bring the heirs of the deceased Taluka Prasad on the record inasmuch as all the plaintiffs were members of a joint Hindu family and the surviving plaintiffs represented the family. Upon these findings the learned Munsif has granted the applications.

It has been contended in revision that the learned Munsif was wrong in holding that the applications were within time, and secondly, that be was wrong in using in evidence, certain documents produced by the opposite party which were copies of attendance register and leave register kept by the officers of the Nizam of Hyderabad, which showed the presence of the opposite party at Hyderabad. As regards the question of limitation it baa been argued that the heirs of Taluka Prasad, were necessary parties, and as they were not brought on the record within thirty days of the date of knowledge of the decrees as alleged by the opposite party, the applications were barred by limitation. Now the learned Munsif has come to a finding that the other plaintiffs represented Taluka Prasad and it was not necessary to bring his heirs on the record. The learned Munsif may be right or he may be wrong, but there is no question of jurisdiction involved on this point. He was entitled to come to a finding on the question as to whether the surviving plaintiffs represented Taluka Prasad and as to whether the applications were barred by limitation and he did come to the finding that the applications were not barred because she heirs of Taluka Prasad were not brought on the record within thirty days. I am of opinion that it is not a question which can be considered in revision u/s lid of the Code.

As regards the question relating to the admissibility of documents of the Hyderabad State, it is clear that those documents were not properly admissible in evidence having regard to the provisions of section 78, clause (6) of the Indian Evidence Act. But the learned Munsif does not base his decision upon those documents only. Before referring to those document, the learned Munsif had, upon, the other evidence in the case, come to the couclusion that the opposite party was absent from his home and summonses were not served upon him. The learned Munsif has, no doubt, not applied his mind to the consideration of the question as to whether these documents were admissible in evidence or not, but, even excluding these documents from the record, it appears from the judgment boat there was sufficient evidence to enable the Munsif to come to a finding on the question as regards the service of summonses.

It was next contended that the document marked" Ex. F in the case (which was a compromise petition filed in a proceeding relating to the execution of a decree obtained by the opposite party against the petitioners) showed conclusively that the opposite party had knowledge of the decrees and of the execution proceedings long before 30 days of the filing of the present applications. The learned Munsif has considered this compromise petition and has come to the conclusion that this petition was not filed with the knowledge of the opposite party. He has compared the handwriting and he has considered the other circumstances connected therewith, and his finding on this document is a finding of fact upon a consideration of the document. I cannot in revision say that the Munsif has committed any such error or any illegality or irregularity so as to affect his jurisdiction.

There is no question of jurisdiction involved in these applications and they are dismissed with costs. There will be only one hearing fee, two gold mohurs.