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Judgment
Amitava Lala, J.—This is an application for recalling and/or setting aside an ex parte decree passed on 13th March, 1986 made with a prayer for condonation of delay and other consequential reliefs by a supporting affidavit dated 5th March, 1974. Such affidavit speak that paragraphs 1 to 19 of the petition are true to the knowledge of the deponent being Secretary and Principal Officer of the defendant No. 3 company.
The petitioner stated that on 5th March, 1974 the plaintiff instituted the suit claiming, inter alia, for a sum of Rs. 8,51,328.51 P. together with, interest and various other consequential reliefs.
On 1st May, 1972 Coking Coal Mines (Nationalisation) Act, 1972 came into force and on and from the said day the right, title and interest of the first defendant in relation to its coal mines stood transferred to and vested absolutely in the Central Government free from all encumbrances and the first defendant became and was entitled to receive payments of certain amount from the Central Government as provided under the Act.
Admittedly the plaintiff submitted his claim for a sum of Rs. 8,19,753.69 P. with the concerned Commissioner of Payments being appropriate forum on 28th November, 1973 i.e. before the institution of the suit.
The defendant No. 3 filed its written statement on 13th August, 1974 taking a plea that in view of the provisions of the Coking Coal Mines (Nationalisation) Act, 1972, the petitioner ceased to have any liability to the plaintiff as a guarantor of the claim of the plaintiff as against the defendant No. 1 and the same stood discharged. Affidavit of documents of the defendant No. 3 was filed on 23rd August, 1976.
The petitioner''s present Advocates all along acted as their Advocates. Several correspondences were made by the petitioner''s Advocates. Last of such correspondence was made on 14th August, 1974. The petitioner received last communication from their Advocates on 23rd March, 1976.
On 24th February, 1998 petitioner was surprised in receiving two notices both dated 18th February, 1998 issued by the Id. Master on 23rd February, 1998 and came to know that the plaintiff wanted to execute a decree dated 13th March, 1986.
Immediately thereafter petitioner took up the matter with its learned Advocate by a letter dated 24th February, 1998 itself and within two days thereafter the petitioner''s Advocate intimated that they were not aware about passing of decree or settling of decree dated 13th March, 1986.
The execution application was made returnable on 10th March, 1998. Upon being advised, petitioner''s Advocates made inspection of records wherefrom they found that on 5th March, 1986 the suit appeared before a single bench of this Hon''ble court under incorrect cause title with incorrect suit number and even without the name of the Advocates. It also appeared from the minute book that the suit was adjourned till 12th March, 1986. On 12th March, 1986 the suit appeared under the heading "ADJOURNED SUITS" with wrong cause title and without the name of the learned Advocates. Again on 13th March, 1986 the list was published similarly.
It also appeared upon enquiry that the suit was decreed ex-parte with an interest at the rate of 6% from 1st March, 1974. Thereafter no notice was served upon the petitioner''s Advocate for the purpose of drawing up and completion of the decree passed by the court which is a mandatory requirement under the Original Side Rules of this Hon''ble Court.
It further appeared that the defendant contested the cause before the concerned Commissioner of Payments by saying that the claim is not maintainable in view of the suit instituted in the High Court at Calcutta. It appeared from the order of the concerned commissioner of Payments, Ranchi dated 10th September, 1979 that the objection raised by the first defendant herein was met by the bank by saying that both the courts have concurrent jurisdiction and such contention of the plaintiff was accepted by the Commissioner of Payments.
However the claim of the plaintiff bank was adjudicated by the concerned Commissioner of Payments and payment was directed to be paid to the Bank and the bank duly accepted the claim. No appeal was preferred by the plaintiff bank from the said order. The plaintiff bank also got interest at the rate prescribed under the Act. The total realisation of the plaintiff bank was Rs. 9.82,304/- which satisfied the dues of the plaintiff bank.
As per provisions of Coking Coal Mines (Nationalisation) Act, 1972 the Commissioner of payments will act as a Civil Court.
The cause of action before the Commissioner of Payments and cause of action before the Civil Court were the same. Therefore, the decree obtained by the plaintiff bank from the Court on 13th March, 1986 is barred by law and net outcome of nullity on the basis of the facts and circumstances of the case.
The petitioner further contended that any claim of the plaintiff bank other than what has admitted under the order of the Commissioner of Payments on 7th December, 1979 are abated under the law and no suit for recovery thereof is or can be maintained.
Respondent/plaintiff opposed this application mainly by contending that the application is barred by law of limitation. However both the Civil Court and Commissioner of Payments under the Act as aforesaid have concurrent jurisdiction over and in respect of the subject matter. Therefore the alw as applicable to the Commissioner of Payments is with regard to the principal and statutory rate of interest but if there is further claim that will be governed by the suit in which the decree will follow. Therefore there is no defect in passing such decree. The respondent/decree-holder is entitled to more amount over and above the sum as has been paid on account of the principal debtor. This application being an application for recalling and/or setting aside of an ex-parte degree as governed under Order 9 Rule 13 of the CPC cannot be proper course of action to recall and/or aside the decree and declare the same as nullity. Moreover this application is already barred by law of limitation.
Upon considering the rival contentions of the parties I feel that there are two basic points of recalling.
i) Recalling and/or setting aside of an ex parte decree on usual grounds being barred by law of limitation;
ii) Recalling and/or setting aside of an ex parte decree not only being barred by law of limitation but also being nullity.
First course of action is usual but second course of action is unusual. First course of action may not survive under the circumstances, but second course of action must have to be survived under the circumstances. First course of action is discretionary and second course of action is mandatory. For the first course of action decree may not be set aside but for the second course of action decree must have to be set aside.
Let us think the subject matter in issue in other way round. Apparently decree, being nullity cannot be executed. Such point, even can be taken up in the execution but as the petitioner has not taken the point in execution but as the petitioner has not taken the point in execution but in an application under Order 9 Rule 13 of the CPC court cannot prima facie reject the application. Therefore court has to enter upon the merit of the application. Court has inherent power on two situations either in a case of ends of justice or to prevent the abuse of process of court of law. Although I feel both the principles apply herein, if not, prevention of abuse of process of court of law is apparent for its application.
A cause which is an abuse of process of court of law and a pure question of nullity cannot be allowed to be continued and at any stage sacra point can be agitated.
Therefore, in the given situation ends of justice and abuse of process of court of law are supplementary to each other to come to a conclusion.
So far the question of preference between law of limitation and nullity axe concerned, in reality, nullity succeeds. Nullity is more fundamental than question of limitation.
In coming to conclusion I have considered the following judgments cited by the Learned Counsels appearing for the parties.
AIR 1998 SC 258 Malkiat Singh & Anr. v. Joginder Singh & Ors.
Benoy Krishna Rohatgi and Others Vs. Surajbali Misra and Another,
3 Ranipet Chemicals and Engineering Co. Pvt. Ltd. Vs. Swastik Stainless Steel Stores,
Jagannath Singh and Others Vs. Ram Naresh Singh,
5 Dilip Kumar Chaurasiya Vs. Ramesh Chandra Sahu alias Bhaiji and others,
6 Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others,
7 Sushila Narahari and Others Vs. Nandakumar and Another,
State of U. P. and others Vs. Harish Chandra and others,
9 Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair,
10 Bharat Coking Coal Ltd. Vs. United Commercial Bank and Another,
AIR 1931 Alld. 294 Radhamohan v. Abbas Ali
A.K.K. Nambiar Vs. Union of India (UOI) and Another,
1998(1) CHN 63 Lee Young Sang & Anr. v. The Board of Trustees for the Port of Calcutta.
As and when AIR 1998 SC 258 speaks about grounds for setting aside ex parte degree on account of non-disclosure of fact, of Advocates non-appearance before the court to his client, Benoy Krishna Rohatgi and Others Vs. Surajbali Misra and Another, speaks about setting aside on account of incorrect printing of advocate''s name in the cause list. Similarly when Ranipet Chemicals and Engineering Co. Pvt. Ltd. Vs. Swastik Stainless Steel Stores, speaks about setting aside on account of Counsels inaction Jagannath Singh and Others Vs. Ram Naresh Singh, speaks about, the same on account of misprint of counsels name in the cause list
Dilip Kumar Chaurasiya Vs. Ramesh Chandra Sahu alias Bhaiji and others, talks about circumstances on which inherent power of stay of ex parte order is justified wherein Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, talks about courts liberal approach in condoning delay Sushila Narahari and Others Vs. Nandakumar and Another, placed almost on a similar circumstances with AIR 1998 SC 258 with question of condonation of delay therein. Sufficient reasons for condonation of delay was also considered in State of U. P. and others Vs. Harish Chandra and others, was shown to establish that cause of action in the suit is now merged with the decree and forms part of the claim. Radha Mohan Datt, Silk Merchant Vs. Abbas Ali Biswas and Others speaks about sufficient cause wherein Bharat Coking Coal Ltd. Vs. United Commercial Bank and Another, speaks that Civil Suit is bar when claim is to be made before the Commissioner of Payments.
On the other hand A.K.K. Nambiar Vs. Union of India (UOI) and Another, and 1998(1) Calcutta High Court Notes were cited to show nature of affirmation of affidavit and its evidential value before the court of law.
All the aforesaid judgments definitely have application in various ways to come to the conclusion, and I have weighed the values but I have dealt with those cases here in the cryptic manner with an obvious reason that I have not given priority to any other logical analysis before the question of nullity. Once it is nullity, it is nullity for ever no matter what is the nature of the application and at what point of time person aggrieved has come before the court of law.
Therefore, the delay, if any, in making this application is condoned. The ex parte decree passed on 13th March, 1986 is recalled and set aside. No order is passed as to costs.
In view of the admitted position that the plaintiff bank proceeded against the principal debtor before the Commissioner of Payments, which is as good as Civil Court, on the self same cause of action and obtained relief and since no appeal had been preferred if at all they are aggrieved, and having binding effect upon the plaintiff, suit is treated as on day''s list and dismissed. Each party will bear their own costs.
Let a decree be drawn up expeditiously. Department and all parties are to act on a signed copy minutes of the operative part of the order.