1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 937 OF 2002 Nabaji Narayan Doifode ... Appellant v/s 1. Smt.Sunderben Tejraj Mehta 2. Babulal Gafoor Seth ... Respondents Mr.Sagar Talekar for the appellant. Mrs.Nita Solanki i/by M/s.Kiran Jain & Co. for the respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 11TH MARCH, 2010 ORAL JUDGMENT: 1. The appeal from order is preferred against the judgment and order of the Trial Court dated 6.7.2002 dismissing the notice of motion filed by the appellant. By this notice of motion, the appellant had sought a stay of the execution application filed by the plaintiff i.e. respondent No.1 herein. 2 2. To appreciate the issues involved in the present case, it would be necessary to note few facts - (i) A summary suit bearing No.4445 of 1990 was filed before the City Civil Court on 4.6.1990 by respondent No.1 against the appellant as well as respondent No.2 who were defendant Nos.2 and 1 respectively. The suit was decreed on 25.1.1991. It appears that a notice of motion bearing No. 1498 of 1991 was taken out by the defendants for setting aside the ex-parte decree. The ex-parte decree dated 29.9.1998 was set aside on 26.4.1999. Thereafter the suit was tried on merits and by an order dated 31.8.1999 the suit was decreed by passing the following order:- “Suit of the plaintiff is hereby decreed as under: 1. Plaintiff is entitled to recover the principal amount of Rs.25,000/- (Rupees Twenty Five Thousand) from defendant No.1 with future interest at the rate of 18% per annum from filing of the suit till the realization of the amount with cost of the suit. 2. Defendant is directed to pay the decretal amount to the plaintiff or her husband within a period of 2 months from the date of the order.” 3. It appears that an application for execution of the decree was filed and an order of attachment from the Registrar of the City Civil Court was obtained against the 3 wages of the appellant. This order was passed on 12.5.2000 in Execution Application No.241 of 2000. The appellant, aggrieved by this order, took out a notice of motion for setting aside that order being Notice of Motion No.2136 of 2002. By the order dated 6.7.2002 the notice of motion was dismissed. Being aggrieved by that order, the present appeal has been preferred by the defendant No.2 i.e. the appellant herein. 4. The main contentions of the learned advocate appearing for the appellant are – (i) that the appellant is a labourer and therefore his wages are exempted from attachment under the provisions of Section 60(h) of the Code of Civil Procedure; (ii) the appellant is an unskilled workman and, therefore, not liable to have his wages attached; (iii) the Trial Court has erred in refusing to set aside the order of attachment when in law such an order could not have been passed against an employee; and (iv) the decree has been passed only against defendant No.1 and not against defendant No.2 i.e. the appellant herein. Therefore, the question of executing such a decree against defendant No.2 does not arise. 5. The learned advocate appearing for the plaintiff, 4 respondent No.1 herein, submits that the appellant has suppressed various facts from this Court. She submits that the appellant had not filed any proceeding for setting aside the ex-parte decree which was passed against both the defendants. She submits that the decree against the appellant continues to be in existence although the ex-parte decree against defendant No.1 was set aside. She further submits that the suit was restored and contested only by defendant No.1 and not by defendant No.2 and, therefore, the judgment was passed only against defendant No.1 as there was already a judgment against defendant No.2. 6. When this appeal from order was admitted, Rebello, J. passed an order in Civil Application No.1133 of 2002 granting interim reliefs in terms of prayer clause (b). It appears that time and again the plaintiff has moved civil applications against the appellant either seeking an attachment under Order 21 Rule 43 and Rule 54 of the Code of Civil Procedure or an injunction against the defendant from selling his rights in a residential room or parting with possession thereof. Therefore, today the first issue which will have to be considered is, whether there is a decree passed against defendant No.2 i.e. the appellant herein. Undoubtedly, the summary suit was decreed ex-parte against 5 defendant Nos.1 and 2 directing them to pay the plaintiff an amount of Rs.39,900/- together with interest of Rs.25,000/- at the rate of 21%. This order was passed on 29.9.1998. 7. A notice of motion was taken out by Mrs.L.K.Mani, advocate for the defendants. The affidavit in support of the notice of motion was filed by defendant No.1. However, merely because the affidavit has been sworn by defendant No.1 it cannot lead to the inference that the advocate for the respondent No.1 wants me to draw, that the ex-parte decree was sought to be set aside only by defendant No.1. The learned advocate for the respondents has not drawn my attention to any provision of law which requires a separate motion, supported by an affidavit to be filed by each person against whom an ex-parte decree has been passed. The Vakalatnama filed in favour of Mrs.Mani in the suit was for both defendants. A notice of motion was taken out by her for the defendants. Obviously, therefore, it is both the defendants, who had sought an order for setting aside the ex- parte decree. The order passed by the Trial Court after the decree was set aside is specifically against only defendant No.1. The order passed by the Trial Court while setting aside the decree does not indicate that the decree was set aside only against defendant No.1. In fact, while making the notice 6 of motion absolute, the Court has ordered that the ex-parte decree dated 29.9.1990 is set aside. Thus, it would obviously mean that it was set aside against both the defendants and not only against defendant No.1. When the suit was finally decided, the Court has chosen to pass a decree only against defendant No.1 although defendant No.2, the appellant herein, was present in Court. 8. Thus, obviously a decree which has not been passed against a person, cannot be executed against that person. 9. The learned advocate for the appellant points out the judgment in the case of Sultan Husain Khan v/s Satnarain Lal, reported in A.I.R. 1953 Hyderabad 191. The Court has held that there is no compulsion under Order 9 Rule 13 of the Code of Civil Procedure for one of the defendants against whom an ex-parte decree is passed to make his co- defendants parties to his application to set aside the decree. When such an application is made by one of the defendants, only then a discretion is available with the Court to decide whether the decree can be set aside as against the other defendants also. In the present case, the Court has exercised its discretion and the decree has been set aside against both defendant No.1 and defendant No.2. 7 10. In my opinion, on a careful reading of all the orders passed by the Trial Court in various proceedings taken out by the appellant and defendant No.1, it is obvious that the decree was passed only against defendant No.1 after the ex- parte decree was set aside against both the defendants. 11. The appeal from order is therefore allowed. 12. The impugned order is set aside. 13. No order as to costs. 14. On the application made by the learned advocate for the respondent/plaintiff, the order is stayed for a period of four weeks from today. ..... 8