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Babu Lal v. Ragunandan

Allahabad High Court

Jan 17, 1932

Judgment

Subsequent
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Structured Summary of the Opinion (Niamatullah, J.)

Factual and Procedural Background

In 1924 Raghunandan obtained a decree against Babu Lal on a mortgage executed in 1913. A final decree was obtained on 2 July 1925, but no sale was effected because Datti Lal brought a suit claiming that the mortgaged property belonged to him, and that suit was decreed in Datti Lal's favour on 13 February 1926. On 30 August 1927 Raghunandan applied for a decree under Rule 6, Order 34 (R.6, O.34) of the Civil Procedure Code (CPC) and obtained an ex parte decree on 22 October 1927.

Babu Lal sought to set aside the ex parte decree. The Munsif initially dismissed his application on a technical ground; that decision was upheld on appeal by the District Judge but was set aside by the High Court, which directed the Munsif to consider the application on its merits. On merits the Munsif found that Babu Lal had not been served with summons and set aside the ex parte decree. Raghunandan presented a civil revision (Civil Revision No. 135 of 1931) against that order.

Separately, Babu Lal brought a regular suit alleging that the ex parte decree had been obtained by fraud; the District Judge on appeal found against him, and Babu Lal filed a second appeal against that decision. The matters that came before the court comprised one revision application, one second appeal, and one appeal from the Munsif's order; the appeals were heard together.

Legal Issues Presented

Whether the Munsif had jurisdiction to set aside the ex parte decree on the ground that Babu Lal had not been served with a summons.
Whether an application under R.6, O.34 of the CPC lies where there has been no sale of the mortgaged property.
Whether a remedy under Section 68(b) of the Transfer of Property Act could be entertained in proceedings under R.6, O.34 of the CPC.
Whether the ex parte decree was obtained by fraud (issue arising in the separate regular suit and second appeal brought by Babu Lal).

Arguments of the Parties

Raghunandan's Arguments

Challenged the Munsif's order setting aside the ex parte decree by way of revision, contending that the Munsif lacked jurisdiction because the District Judge on appeal had expressed disagreement with the Munsif's view regarding service of summons.
In the appeal on the merits, contended that the decree-holder should be able to obtain a personal decree under R.6, O.34 of the CPC.
Argued (in the lower court) that the appellant should be held to have a remedy under Section 68(b) of the Transfer of Property Act.

Babu Lal's Arguments

Sought to set aside the ex parte decree on the ground that he had not been served with summons (as found by the Munsif).
Brought a regular suit alleging that the ex parte decree had been obtained by fraud; pursued a second appeal after losing in the District Court on that point.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Badal Singh v. Debi Saran	That where there had been a sale (and the plaintiff's claim was satisfied by the proceeds) it was possible to apply R.6, O.34 of the CPC even if the sale was subsequently nullified.	The court distinguished this authority: it held Badal Singh inapplicable to the present case because in Badal Singh there had in fact been a sale and sale proceeds had satisfied the claim, whereas in the present case no sale had ever taken place.

Court's Reasoning and Analysis

The court addressed the three matters together and proceeded in stages.

Revision application (challenge to the Munsif's order): The court found there was no ground for revision under the CPC. The principal point argued — that the Munsif lacked jurisdiction because the District Judge disagreed with the Munsif's finding on service of summons in a separate proceeding — was rejected. The court explained that the District Judge's finding related only to whether the decree had been obtained by fraud in the separate regular suit, and that that finding did not affect the Munsif's jurisdiction to decide on service of summons. The court therefore held the Munsif did have jurisdiction and dismissed the revision.
Appeal against the Munsif's decision on the merits (Raghunandan's appeal): The court held that Order 34, Rule 6 of the CPC applies only where there has been a sale and the sale proceeds are insufficient to satisfy the plaintiff's claim. In the present case there had been no sale at all; as such, an application under R.6, O.34 does not lie. The court noted that there are numerous decisions to this effect and considered the cited authority (Badal Singh v. Debi Saran) distinguishable because that case involved a sale which had satisfied the plaintiff's claim and was subsequently attacked; by contrast here there was no sale. Consequently, the court dismissed the appeal on the merits.
Remedy under Section 68(b) of the Transfer of Property Act: The court observed that whether the appellant had a remedy under Section 68(b) was not a question to be decided in proceedings under O.34, R.6 of the CPC. If the terms of O.34, R.6 do not apply, the appellant cannot use that proceeding to obtain a different form of relief; therefore the court declined to entertain Section 68(b) as part of the O.34 proceeding.
Second appeal by Babu Lal (from the District Judge's finding that the decree was not obtained by fraud): In view of the court's decisions on the revision and the other appeal, Babu Lal's counsel did not wish to press the second appeal; the court dismissed it accordingly.
Costs: The court considered it proper that the parties should bear their own costs in the revision and both appeals.

Holding and Implications

Final Disposition: All three matters before the court were dismissed.

Specific rulings:

Revision (Civil Revision No. 135 of 1931) dismissed.
Appeal by Raghunandan (against Munsif's merits decision) dismissed.
Second appeal by Babu Lal dismissed (not pressed).

Consequences and immediate effects:

The Munsif's order setting aside the ex parte decree was held to be within the Munsif's jurisdiction; the revision attacking that order failed.
The court held that R.6, O.34 of the CPC cannot be invoked where there has been no sale; on that basis the appeal seeking relief under O.34, R.6 was dismissed.
The court declined to decide on a remedy under Section 68(b) of the Transfer of Property Act within the O.34, R.6 proceedings.
The parties were ordered to bear their own costs throughout.

The opinion does not elaborate broader precedential consequences beyond these direct effects on the parties.

Show all summary ...

Niamatullah, J.:— One application in revision, one second appeal and one appeal from the order of a Munsif, which is connected with the said application for revision and second appeal have come before us in the following circumstances. In the year 1924 Raghunandan obtained a decree against Babu Lal on a mortgage which had been executed in the year 1913. On 2nd July 1925 he obtained a final decree, but he never brought the property to sale because one Datti Lal brought a suit for a declaration that the mortgaged property belonged to him (Datti Lal) and not to the mortgagor Babu Lal, and this suit was decreed in favour of Datti Lal on 13th February 1926. On 30th August 1927 Raghunandan applied for a decree under R. 6, O. 34 of the CPC, and obtained a decree ex parte on 22nd October 1927. Babu Lal applied for setting aside the ex parte decree and at first his application was dismissed on a technical ground. The decision of the Munsif dismissing the application was upheld in appeal by the District Judge, but set aside finally by the High Court which directed that the Munsif should consider Babu Lal's application for setting aside the ex parte decree on its merits. The Munsif held that Babu Lal had not been served with a summons and set aside the ex parte decree, and a revision against that decree (Civil Revision No. 135 of 1931) has been, presented by Raghunandan and is one of the three decisions which are now before us. The Munsif on the merits of the case decided against the decree-holder and the appeal against that decision of the Munsif was transferred by us from the Court of the District Judge to be heard along with the application for revision.

2. Babu Lal on his part brought a regular suit to have the ex parte decree set aside on the ground that it had been obtained by fraud, but the District Judge on appeal found against him and a second appeal against that decision is the third matter which we have to decide. As to the application in revision we may say very shortly that there is no ground for a revision as required by the Civil Procedure Code. The only point argued is that the Munsif had no jurisdiction to set aside the decree on his finding that Babu Lal had not been served with a summons, in view of the fact that in the regular suit brought by Babu Lal the District Judge in appeal expressed an opinion showing that he disagreed with the view taken by the Munsif as to the service of summons.

3. The finding of the learned District Judge has in no way affected the jurisdiction of the Munsif as all that the District Judge had to decide, and all that he did decide as is clear from his judgment was that the decree had not been obtained by fraud. It is not even inconsistent with the decision of the District Judge to hold that the summons was not actually delivered and certainly there is no question that the Munsif had no jurisdiction to make the order against which this application has been filed. We accordingly dismiss the application in revision.

4. In the appeal against the decision of the Munsif on the merits that the decree-holder could not succeed in an application for a personal decree under R. 6, O. 34 of the CPC, the appellant is met by the initial difficulty which is in our opinion insuperable that in this case there has been no sale. R. 6, O. 34 applies only to cases where there has been a sale and where the proceeds of the sale are found to be insufficient to pay the amount due to the plaintiff. There are numerous decisions of this Court to the effect that when there has been no sale an application under R. 6, O. 34 does not lie. We have been referred to certain decisions where although there has been a sale the sale has been subsequently nullified; in particular to a decision reported in Badal Singh v. Debi Saran(1) by a Bench of which one of us was a member. In that case not only was there a decree for sale but the whole of the plaintiff's claim was satisfied by the sale proceeds, and it was only afterwards that a suit was brought by the mortgagor's grandson declaring the mortgage in the decree and its subsequent sale void. The Bench in that case held that as there had been a sale, it was possible to apply the provisions of R. 6, O. 34 of the CPC. We cannot consider that case to be an authority for the argument raised by the appellant in the present case. A further point was argued in the lower Court, namely, that the appellant should be held to have a remedy under Section 68(b) of the Transfer Property Act. We do not consider that this is a question which can be decided in an application under O. 34, R. 6 of the CPC. If the terms of that order do not apply the appellant cannot go beyond them to obtain a relief of a different nature in the present proceeding. We accordingly dismiss this appeal.

5. There remains only the appeal filed by Babu Lal against the decision of the District Judge to which we have referred to above. In view of our decisions on the revision application and the appeal filed by Raghunandan the learned counsel for Babu Lal does not wish to press this appeal which is accordingly dismissed. We consider that both in the revision and in the two appeals it is proper that the parties should bear their own costs throughout and we order accordingly.

B.V/R.K

6. Appeals dismissed.