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Report No. 27

Order IX, rule 9

By a local Amendment in the Punjab the suits for redemption are excluded from the operation of Order IX, rule 9. This would be the position even apart from the amendment1. It is considered unnecessary to adopt this amendment.

Under the Calcutta Amendment copies of the application under this rule have to be filed along with the application. This is a matter for the Civil rule and need not be adopted.

1. Subbu Rao v. Raju, 1949 FCR 485: AIR 1950 FC 1 reversing AIR 1945 Mad 225; Shridhar v. Ganu, ILR 52 Born 111: AIR 1928 Born 67.

Order IX, rule 13 and "duly served"

1. Under Order IX, rule 13, if the court is satisfied either that the summons has not been served, or that the defendant was prevented by sufficient cause from appearing, etc., the ex parte decree should be set aside. The two branches of the rule are distinctive and the defendant, whatever his position may be in respect of one branch, is entitled to the benefit of the other branch if he satisfies the court that he has made good his contention in respect of the other branch1.

2. Now, cases may arise where there has been a technical breach of the requirements of "due service", though the defendant was aware of the institution of the suit. If may well be, that the defendant had knowledge of the suit in due time before the date fixed for hearing, and yet, apparently he would succeed if there is a technical flaw2. This situation can arise, e.g., where the acknowledgment on the duplicate of the summons has not been signed. There may be small defects in relation to affixation,3 etc., under Order V, rule 15. At present, the requirements of the rules regarding service must be strictly complied with, and actual knowledge (of the defendant) is immateria14. (There are not many decisions which hold that even where there has not been due service, yet the decree can be maintained, if the defendant knew the date of hearing.)5

3. Where a literal conformity with the C.P.C. is wanting, the second part of column third of Article 164, Indian Limitation Act, 1908 (now Article 123, Limitation Act, 1963) applies6-7. As to substituted service, see discussion in undermentioned decision8.

4. The matter was considered exhaustively by the Civil Justice Committee9, which recommended a provision that a decree should not be set aside for mere irregularity. Local Amendments made by several High Courts (including Allahabad, Kerala, Madhya Pradesh, Madras and Orissa) have made a provision on the subject, though there are slight variations in the language adopted by each. Such a provision appears to be useful one, and has been adopted on the lines of the Madras Amendment10.

5. When the defendant cannot be found, and the summons is served on an adult male member of the family under Order V, rule 15, the question may arise whether the service is sufficient in law, if the male member has an interest in the litigation which is adverse to that of the defendant. The matter was considered by the Civil Justice Committee11, which recommended that though such service should remain "due service" for the purposes of the Civil Procedure Code, yet Order V, rule 15 should be amended to provide that in such a case the service shall not be regarded as coming within the words "duly served" in Article 164 of the Limitation Act, 1908 (now Article 123 of the Limitation Act, 1963).

The Calcutta High Court has amended Order V, rule 15 by adding a proviso to the effect that where the adult male member has an interest in the suit and such interest is adverse to that of the defendant, a summons so served shall be deemed for the purposes of the third column of Article 164 not to have been duly served. The Orissa High Court has made an amendment to Order IX, rule 13 to the effect that in such a case the summons shall not be deemed to have been duly served within the meaning of the rule (Order IX, rule 13). The question whether any provision on the subject is needed has been considered, and it is felt that no change need be made on this point.

1. Baldeodas v. Subkarandas, AIR 1925 Cal 627 (628) (Page J.) (Reviews case-law as to affixation also).

2. Cf. Civil Justice Committee Report, (1924-25), p. 169.

3. Cf. elaborate discussion in Civil Justice Committee Report, pp. 168 to 171.

4. Ebrahim Saleji v. Johurmull, AIR 1916 Cal 181 (2) (Sanderson C.J., Woodroffe and Mookerjee JJ.).

5. One decision taking such view is Nathu Ram v. Salim Abdul Karim, AIR 1933 All 165 (Iqbal Ahmad J.).

6. Sri Krishna Rice Mills v. Rajagopaul, AIR 1958 Mad 522.

7. Rustomj, Limitation Act (1958), pp. 957 and 958.

8. Bashyam v. Parthasarathi, AIR 1954 Mad 195.

9. Civil Justice Committee (1924-25), Report, p. 172.

10. Madras Amendment was construed in AIR 1953 Mad 528.

11. Civil Justice Committee Report (1925), p. 170, para. 20.

Order IX, rule 13, proviso

1. The proviso to Order IX, rule 13 runs as follows:-

"Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also."

The proviso thus empowers the Court to set aside an ex parte decree in relation to a defendant who has not actually applied for such setting aside. The proviso was inserted in 1908, because, under section 108 of the 1882 Code, there was a conflict of decisions1 as to whether the decree could be set aside only against the defendant who made the application, or whether it could be set aside as a whole2.

2. One question that has arisen under the proviso is, whether it authorises the setting aside of a decree when the decree dismisses the suit in relation to a particular defendant. A narrower view based on the word "against" is, that such setting aside is not allowed3. But a wider view seems to have been taken in some decisions 4-5.

3. Another point on which there is some doubt is, whether in relation to those defendants against whom the proceedings were not ex parte, the proviso applies. A query on this point was raised by Mudholkar J. in one Nagpur case6, and though he thought it possible to decide the case on some other ground, he observed, that he would have been inclined to hold that the proviso should be confined to the "ex parte" decree to which alone the substantive provision expressly relates. But in a Patna ease7 a different view seems to have been expressed. (Under the old Code sections 106 and 108, it had been held8 that the case could not be re-opened with respect to a defendant against whom a decree not ex parte was passed.)

4. It is considered unnecessary to encumber the rule with any amendment on these points.

1. The case-law under the old section will be found reviewed in Khagesh Chandra v. Chandra Kanta, AIR 1954 Assam 183 (186) (FB).

2. Vasant v. Tukaram, AIR 1960 Born 485 contains a good general discussion of the proviso.

3. Khagesh Chandra v. Chandra Kanta, AIR 1954 Assam 183 (FB) (Sarju Prasad, C.J. and Ram Labhaya J., Deka J. dissenting).

4. Ram Baran v. Bodh Ram, AIR 1934 All 1051 (Kendall J.).

5. Buramal v. Har Kishan, (1902) ILR 24 All 383.

6. Bhim Rao v. Girdhari Lal, AIR 1954 Nag 125 (126) (Mudholkar J.).

7. Raghubar v. Ramasray, MR 1924 Pat 771 (772).

8. Manoku v. Sitaram, (1894), ILR 18 Born 142.

Order X, rule 2

1. It is considered, that at the first hearing, it should be obligatory on the court to examine such party or his pleader, etc., who is present for elucidating the matters in controversy, as the court may think fit.

2. Necessary changes have been proposed1.

3. See also the body of the Report.

Code of Civil Procedure, 1908 Back

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