A decree passed in favour of one Tukaram and against defendants 2 and 3 was set aside as against defendant No. 3 only under O. 9, R. 13, Civil Procedure Code, by the Civil Judge, Yeotmal. But while setting aside the decree as against defendant No. 3 only, no order was passed as regards the decree as against the other defendants. Defendant No. 2 then made an application under Sec. 151, C.P.C and also for review under Order 47, rule 1, to the successor of the Judge who had passed the order under O. 9, R. 13, praying that the decree be also treated as having been set aside as against defendants 2, 1 and 3. The successor Judge, Mr. Kolhekar, held that the decree proceeded on the grounds common to defendants 2 and 3 and that it should have been set aside against all the defendants i.e defendants 2 and 3, under the proviso to Order 9, rule 13, but he held that although the order passed by his predecessor was contrary to the proviso, he had no jurisdiction to correct that illegality on a review, because illegality of the order of his predecessor was not a sufficient cause for review under O. 47, R. 1, C.P.C He therefore rejected the application of defendant No. 2 who has now come in revision.
2. It is contended for the applicant that the view taken by the lower Court that this was not a good ground for review is wrong. He relies on Hari Sankar v. Anath Nath, AIR 1949 FC 106. He also supports the reasoning of the lower Court that in this case the original Judge who had set aside the decree should have set aside the decree against all the defendants 2 and 3 and not merely as against defendant No. 3 who had applied under O. 9 R. 13. The suit in which the decree came to be passed was filed by Tukaram against a firm (defendant No. 1) consisting of its two partners defendants 2 and 3, alleging that the two partners, defendants 2 and 3, as partners of the firm defendant No. 1, had entered into a contract to plough 200 acres of plaintiff's land, and claimed damages for breach of the contract. No written statement was filed by defendant No. 1, but defendants 2 and 3 filed a written statement repudiating the claim of the plaintiff. Defendant No. 3 did not appear. A decree was passed for Rs. 2640/- against defendants 2 and 3. Defendant No. 2 led evidence but defendant No. 3 did not appear on the date when the evidence was recorded. The Court passed a decree for Rs. 2640/- against defendants 2 and 3.
3. In my opinion, the trial Court erred in its view that it had no powers to review the order passed by its predecessor in a case like this, but I differ from the view taken by it that this was a case in which the order passed by its predecessor should have been modified by setting aside the decree as against both the defendants and not merely as against defendant No. 3, who had applied under O. 9, R. 13. Their Lordships of the Federal Court held in AIR 1949 FC 106:
“That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of O. 47, R. 1, C.P.C”.
4. It is therefore clear from the ruling of their Lordships of the Federal Court that the view taken by the trial Judge that he has no power to review the question decided by his predecessor, is not correct because his predecessor had not considered the question whether the proviso to O. 9, R. 13 was to be applied or not. If the relevant provision of law has not been considered at the time of passing the order, such an order can and should be reviewed if necessary by the Judge who passes that order or by his successor. I therefore hold that the trial Judge erred in his view that he had no power to review the order passed by his predecessor.
5. It is contended by the learned counsel for the applicant that although the lower Court held that the Order passed by its predecessor was illegal it did not set aside the order because it thought that it had no power to review the order, and that if this Court holds that the order could have been reviewed the original order passed should be set aside. But this Court cannot set aside the order passed unless it agrees with the view taken by the lower Court that the original order was contrary to the proviso to O. 9, R. 13, C.P.C
6. The lower Court thought that the order passed by its predecessor was contrary to law because (i) the decree in question is one and indivisible, (ii) the decree is likely to result in two inconsistent decrees if the decree is not set aside against defendants 2 and 3, and (iii) the decree proceeds on the grounds common to defendants 2 and 3. In addition to these grounds it is also urged by the learned counsel for the applicants that in the interests of justice the whole decree should be reopened and the decree should be set aside against both defendants 2 and 3 and not merely against one of them, namely, defendant No. 3 who had applied under O. 9, R. 13, to have the ex parte decree set aside. Learned counsel for the applicant has relied on Khagesh Chandra v. Chandra Kanta, AIR 1954 Assam 183 (FB), Gopala Chetti v. Subbier, ILR 26 Mad. 604, Bhura Mal v. Har Kishan Das, ILR 24 All. 383 (FB), Mahomed Hamidulla v. Tohurennissa Bibi, ILR 25 Cal. 155, Munshi Ram v. Malava Ram, AIR 1917 Lah. 194 and Meenakshi Sundaram v. Chandrakasa Naicker, AIR 1927 Mad. 550.
7. It is unnecessary to consider the Calcutta case at any great length because that was a decision under the old C.P.C and the view taken by the Chief Justice of the Calcutta High Court was that under Sec. 108 of the old Code if a decree was to be set aside the whole decree should be set aside against all the defendants and not against some only of the defendants.
8. The Assam case deals with a different set of circumstances, because in that case the suit had been decreed ex parte against one defendant and dismissed, after contest, against another defendant. It was held by the majority of the Full Bench of the Assam High Court that O. 9, R. 13 and the proviso to it do not confer any jurisdiction upon the Court to reverse a decree dismissing the suit of the plaintiff as against some of the defendants. In the instant case the ex parte decree had been passed against both the defendants 2 and 3 and not in favour of one of them. The case of the Assam High Court has therefore no application to the instant case. But the view has been expressed that if the decree is joint and indivisible or if there is a possibility of conflicting decrees, then the whole decree should be set aside under the proviso to O. 9, R. 13. In AIR 1927 Mad. 550 in a suit filed for delivery of a house and mesne profits against defendants 2 and 3 and defendant No. 1 who had purchased the house in execution of a decree against the undivided brother of defendants 2 and 3, these two defendants were ex parte and the plaintiff compromised with the first defendant, with the result that the decree was passed against all the defendants for possession and for mesne profits. The second defendant who had been ex parte, got the decree set aside under O. 9, R. 13. Plaintiff filed a petition saying that if the ex parte decree is set aside against the second defendant, it should also be set aside against all the defendants. It was held that the decree was of an indivisible character because it was for the possession of the house which itself was indivisible, and if the share of one of the defendants is excluded, delivery in effect was impossible. The Madras High Court therefore set aside the ex parte decree against all the defendants, although the petition to do so had been filed by the plaintiff. This case is an authority for the proposition that if the decree was joint and indivisible and if the setting aside of the decree against one of the defendants only would result in an impossibility of execution, then the whole decree should be set aside. In AIR 1917 Lah. 194 a decree had been passed ex parte against the principal debtor and his surety and after the ex parte decree against the principal debtor was set aside under O. 9, R. 13, it was held that the Judge was in error in setting aside the decree against the principal debtor without setting it aside against the surety.
9. If we look at the wording of the proviso to O. 9, R. 13, it provides that where the decree is of such a nature that it cannot be set aside as against such defendant only, the decree may be set aside against all or any of the other defendants also. The proviso contemplates cases where the decree is of such a nature that it cannot be set aside against one defendant only. Such cases are, for instance, a decree for possession of a house in the joint possession of persons, a partition decree, and a decree for joint possession of property in the joint possession of two or more persons. It is the nature of the decree that is the determining factor and not the reasons behind the decree. Even if the defence of two defendants is common and even if the decree proceeds on a ground common to all the defendants, the ultimate decree should not be set aside against all the defendants unless it is of such a nature that it cannot be set aside as against one defendant only. Two decrees may be inconsistent in the sense that the grounds given are inconsistent. A decree against two or more defendants may be a decree for a certain amount of money as damages for breach of a contract, and if the decree against one of the defendants is set aside under O. 9, R. 13, and ultimately the suit is dismissed against such a defendant on the ground that he did not commit a breach of contract, then though the grounds may be inconsistent the original decree is not of such a nature that it cannot be set aside as against one defendant only. Generally in the case of a money decree the application of the proviso to O. 9, R. 13, C.P.C is not attracted. In Hiralal v. Sitaram, AIR 1952 Bom. 446, which was a case of money lent to two defendants carrying on business under a partnership name and in which an ex parte decree passed against defendants Nos. 1 and 2 and in favour of the plaintiff, was set aside against defendant No. 1 under O. 9, R. 13, it was held that the application of defendant No. 2 for setting aside the ex parte decree against him also under the proviso to O. 9, R. 13, should be rejected because the money decree was not an indivisible decree and the argument of inconsistent decrees being possible was rejected. For the application of the proviso to O. 9, R. 13, it is not sufficient that there was possibility of inconsistent decrees but what is necessary is that the original decree, which is being set aside at the instance of only one defendant, is of such a nature that it cannot be set aside as against that defendant only; if there is such an infirmity in the original decree, then only action would be taken under the proviso.
10. In the instant case, the original decree was a decree for Rs. 2640/- passed against defendants 2 and 3, who were previously members of a partnership of defendant No. 1, for breach of a contract with the plaintiff to plough 200 acres of land. Such a decree for money is not of such a nature that it cannot be set aside as against one defendant only. A suit for money can be decreed against one defendant and dismissed against another, or it may be decreed against both the defendants or dismissed against both. To such a decree the provisions of the proviso to O. 9, R. 13, are not attracted. Such a decree is not one and indivisible. Nor would there be inconsistent decrees if the decree is set aside only against one of the defendants. The interests of justice also do not require that the decree should be set aside against all the defendants even though the decree proceeds on grounds common to the defendants. I therefore reject the revision application with costs.
HD/V.B.B
Application dismissed.
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