Chandra Chur Deo v. Bhola Rai

1. This is an application against the order of the Munsif, dated the 19th July, 1920, under O. IX, B. 13 of the CPC setting aside an ex parte decree.

2. The petitioner brought a suit for the recovery of rent for the years 1320 to 1323 at an annual jama of Rs. 32 and also for enhancement of rent under the Bengal Tenancy Act. The Defendant did not appear and the suit was decreed ex parte on the 80th of January 1917. In execution of that decree the holding was sold and delivery of possession was given on the 1st of May 1919. The Defendants applied for setting aside the ex parte decree on the 2nd of January 1920 alleging that the summons and the other processes were not served upon them and that they came to know of it on the 3rd of December 1919 when they were ploughing the land in question. The Petitioner objected to the petition being granted.

3. The objection was overruled, the petition for restoration was granted and the ex parte decree was set aside on the ground that the service of process was not proper and in accordance with law. The Defendants were kept ignorant of the salt and the execution proceeding and they did not come to know about it until the date of their knowledge alleged by them. The finding of fact is accepted and in fact it is net open to the Petitioner to challenge it in revision.

4. The order of the Court setting aside the ex parte decree is objected on two grounds (1) that the application of the Opposite Party should not have been admitted because it did not disclose the injury sustained by him by reason of the decree sought to be set aside nor was any deposit of rent made although Bhola Rai, one of the tenant Defendants admitted in the course of his cross-examination while being examined is support of the application in the present case that he had not paid rent for the years in suit in the words “I have not paid rent far the land for about eight years,” and (2) that the application was barred on the date of presentation under Article 164 of Sch. I to the Limitation Act, inasmuch as the application was made on the 2nd of January long after the delivery of ??? which is said to have ??? place on the 1st of May 1919, when presumably the applicant must have come to know of the decree in question.

5. The second ground does not need any serious consideration, for, as observed above, the finding of the Court below has been that there was no service of summons in the suit or processes in the execution proceedings and consequently the application of the Opposite Party is not barred by time.

6. In support of the first ground on behalf of the Petitioner, reliance is placed upon Section 153A of the Bengal Tenancy Act and upon the case of Annada Prasanna Mukherji v. Nagendra Nath Biswas(1). It was there bold that it is not enough to say that injury was caused by reason of the sale and execution of the decree and that the injury must be clearly stated and farther that the amount if any due must be deposited before the application is made. The learned Vakil also relied upon the case of Ramcharitra Ram v. Hasim Khan(2). This was a case under Section 17 of the Provincial Small Cause Court Act, which is analogous to Section 153 of the Bengal Tenancy Act, in requiring the deposit of the decretal amount in the case of an application for the setting aside of an ex parte decree. This is also obvious from the report of the Select Committee on the amendment of the Bill whereby the present Section 153A was inserted in the Bengal Tenancy Act. Mr. Roy, on behalf of the Opposite Party, repels this contention on the ground that Sec. 153A is inapplicable because the tenants Opposite Party did not admit in their application to set aside the ex parte decree that any rent was due, nor did the Petitioners landlords take any such objection in their tardid (reply) filed by them. It is also said that the dispute between the parties was as regards the enhancement of rent and therefore there could not be any admission for the arrears of rent being duo at the enhanced rate. In support of hit contention Mr. Roy relies upon the case of Banarasi Prasad v. Makhan Roy(3), a case under Section 150 of the Bengal Tenancy Act, the provisions whereof are similar to S. 163A. Similarly he eites the case of Ali Ahammad Sirdar v. Bipin Behari Bose (4) to show that the admission must be dear and not snob as has been relied upon by the Petitioners landlords in this case. Finally be relies upon the case of Tara Sankar v. Basiruddi(5), where it was held that S. 153A does not apply where the plaintiff claimed a much larger quantity of land the rent whereof was Rs. 710. It was observed that there was no admission of rent being due with respect to the holding in suit.

7. I have carefully considered the arguments of both the parties and the authorities cited by them. None of the authorities go so far as to lay down that in a case where the arrears of rent are claimed and also the enhancement of rent, S. 153A could have any application. S. 153A bars the entertainment of any application under O. IX, R. 13 to set aside an ex parte decree or under O. XLVII, R. 1 for review of judgment unless and until the application contains a statement of the injuries sustained by the applicant by reason of the decree or the judgment and the applicant deposits in Court the amount of rent, if any, admitted by him to be due. It is clear from para. 4 of the application, which has been relied upon by both the parties, that the applicant tenants disclosed and clearly stated the injury sustained by them by reason of their decree which declared that they were liable to pay enhanced rata of rent from the year 1324. The injury was palpable. The contention must, therefore, be overruled.

8. As to whether there was an admission of any rent, the application made for setting aside the ex parte decree contains no such admission. The tardid filed by the Petitioners did not take any such objection. Upon the pleadings which consisted, in the present case, of the application and the tardid, there was, therefore, no admission of any rent being due and the application was, therefore, properly entertained.

9. Reliance is, however, placed upon the statement in the cross-examination of Bhola Rai, tenant applicant, Opposite Party, which is too vague to constitute an admission of any rent being due for the years in suit or with respect to the decree in question. All that he said is “I had not paid rent for eight years.” Accepting this statement to be true, he does not say that the rent was due. The admission may or may not have been made by some of the other Defendants. Thus even it that statement in the cross-examination be held to affect the application already entertained under Sec. 153, which is more than doubtful, the statement in question, as observed above, does not constitute an admission of the amount being due. Therefore the Court below was right in setting aside the ex parte decree.

10. The application is accordingly rejected with costs to the Opposite Party. Hearing fee, two gold mohurs.

11. Application rejected.