1
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2062 OF 2009
Vijay Singh … Appellant(s)
Versus
Shanti Devi and Anr. …Respondent(s)
J U D G M E N T
Deepak Gupta, J.
1. “Whether, in a suit for pre-emption, an ex parte decree
which is later set aside, can be termed to be the decree
of the court of first instance” is the question which
arises for decision in this appeal.
2. The undisputed facts are that one Roop Chand sold the
suit land in favour of Shanti Devi, respondent No. 1
2
herein. Vijay Singh, appellant who was a co-sharer
with Roop Chand, filed a suit for possession on the
basis of right of pre-emption granted to a co-sharer
under the Punjab Pre-emption Act, 1913 (for short ‘the
1913 Act’) on 6th November, 1989. The defendant
Shanti Devi was proceeded against ex parte on 6th
April, 1990. Thereafter, an ex parte decree was passed
against her on 10th April, 1990. Pursuant to the
decree, execution petition was filed and the appellant
Vijay Kumar took possession of the suit land on 7th
June, 1990.
3. On the same day, i.e., 7th June, 1990, Shanti Devi filed
an application under Order IX Rule 13 of the Code of
Civil Procedure (for short ‘CPC’) for setting aside the
decree dated 10th April, 1990 claiming that she had
not received the summons and had no knowledge of the
proceedings. It was alleged that only when possession
was taken on 7th June, 1990 did she become aware
that the appellant Vijay Kumar had initiated some legal
proceedings against her. The trial court dismissed the
application filed by Shanti Devi for setting aside the ex
3
parte decree on 4th October, 1993. Thereafter, Shanti
Devi filed an appeal before the appellate court.
4. In the meantime, on 17th May, 1995 the State of
Haryana amended Section 15 of the 1913 Act. The net
effect of this amendment was that the amendment took
away the right of pre-emption of a co-sharer and the
right of pre-emption was only retained with a tenant.
5. The appellate court allowed the application filed by
Shanti Devi and set aside ex parte decree on 28th
August, 1998. The appellant herein challenged the
order of the appellate court by filing civil revision
petition in the Punjab and Haryana High Court, which
was dismissed on 5th November, 1999. It would be
pertinent to mention that the learned Judge, while
dismissing the revision petition, also observed that in
view of the amendment to the 1913 Act the appellant
herein had no right to pre-empt the sale of the suit
land. The appellant then filed Petition for Special Leave
to Appeal (Civil) No. 3488 of 2000 before this Court,
which was disposed of on 10th March, 2000. This Court
not only dismissed the petition but also ordered that
4
the trial court would decide the suit afresh without
being influenced by the observations on merit, made by
the learned Judge of the High Court.
6. Thereafter, the suit was tried afresh and the main
ground raised by Shanti Devi was that in view of the
amendment made to the 1913 Act, the right of
pre-emption was no longer available to the appellant.
On the other hand, the appellant contended that the
date of decree of the first court was 10th April,
1990 when the ex parte decree was passed and,
therefore, the rights of the parties are governed by the
law as it stood on that date.
7. After remand, the learned trial court dismissed the suit
of the appellant on 27th November, 1999 on the ground
that by virtue of amendment to the 1913 Act, the right
of pre-emption stood extinguished. The appellant,
thereafter, filed first appeal before the trial court, which
was also dismissed. The regular second appeal also
met the same fate.
8. The issue to be decided is a legal issue which stands in
a narrow compass. Before dealing with the issue itself,
5
it would be pertinent to refer to the Constitution Bench
judgment of this Court in the case of Shyam Sunder
& Ors. v. Ram Kumar & Anr., 1
wherein this Court
considered the effect of the amendment made to the
1913 Act. This Court held that if Section 15 of the
1913 Act was amended during the pendency of the
appeal before the Supreme Court, the decree of
pre-emption would not be affected by such amendment.
After discussing the entire law, the Constitution Bench
culled out the following legal principles:
“10. On an analysis of the aforesaid decisions
referred to in the first category of decisions, the
legal principles that emerge are these:
1. The pre-emptor must have the right to
pre-empt on the date of sale, on the date of
filing of the suit and on the date of passing of
the decree by the court of the first instance
only.
2. The pre-emptor who claims the right to
pre-empt the sale on the date of the sale must
prove that such right continued to subsist till
the passing of the decree of the first court. If
the claimant loses that right or a vendee
improves his right equal or above the right of
the claimant before the adjudication of suit, the
suit for pre-emption must fail.
3. A pre-emptor who has a right to pre-empt a
sale on the date of institution of the suit and
on the date of passing of decree, the loss of
such right subsequent to the decree of the first
1 (2001) 8 SCC 24,
6
court would not affect his right or
maintainability of the suit for pre-emption.
4. A pre-emptor who after proving his right on
the date of sale, on the date of filing the suit
and on the date of passing of the decree by the
first court, has obtained a decree for
pre-emption by the court of first instance, such
right cannot be taken away by subsequent
legislation during pendency of the appeal filed
against the decree unless such legislation has
retrospective operation.”
9. In view of the decision of the Constitution Bench, it is
not necessary to refer to various other judgments cited
before us. A perusal of the principles laid down by the
Constitution Bench clearly indicates that the
pre-emptor should possess the right to pre-empt on
three dates:
(i) the date of sale;
(ii) the date of filing of the suit; and
(iii) the date of passing of the decree by the court of first
instance only.
As far as the first two conditions are concerned, there
is no dispute that the appellant possessed the right of
pre-emption on the date of sale as also on the date of filing of
the suit since he was a co-sharer in the land in question. It
is also not disputed that on 10th April, 1990 when the ex
7
parte decree was passed in favour of the appellant he had a
valid legal right of pre-emption in his favour.
10.The question to be decided is what is the effect of
setting aside of the ex parte decree and the passing of
fresh decree by the court of first instance on 27th
November, 1999 on which date, admittedly, the
appellant did not have a valid right to pre-empt the
sale in view of the amendment to the 1913 Act.
11.Order IX Rule 6 of CPC, reads as follows:
“ORDER IX- APPEARANCE OF PARTIES AND
CONSEQUENCE OF NON-APPEARANCE
xxx xxx xxx
6. Procedure when only plaintiff appears.- (1)
Where the plaintiff appears and the defendant
does not appear when the suit is called on for
hearing, then
(a) When summons duly served—lf it is
proved that the summons was duly
served, the court may make an order that
the suit be heard ex parte;
(b) When summons not duly served—If
it is not proved that the summons was
duly served, the court shall direct a
second summons to be issued and served
on the defendant;
(c) When summons served but not in
due time—If it is proved that the
summons was served on the defendant,
8
but not in sufficient time to enable him to
appear and answer on the day fixed in the
summons, the court shall postpone the
hearing of the suit to a future day to be
fixed by the court, and shall direct notice
of such day to be given to the defendant.
(2) Where it is owing to the plaintiff’s default
that the summons was not duly served or was
not served in sufficient time, the court shall
order the plaintiff to pay the costs occasioned
by the postponement.”
12.We are only concerned with clause (a), which provides
that if summons are duly served and the defendant
does not put in appearance, the court may make an
order that the suit would be heard ex parte. In this
case, this was the procedure followed and an ex parte
decree was passed. There is no manner of doubt that
an ex parte decree is also a valid decree. It has the
same force as a decree which is passed on contest. As
long as the ex parte decree is not recalled or set aside,
it is legal and binding upon the parties.
13.Order IX Rule 13, CPC reads as follows:
“ORDER IX- APPEARANCE OF PARTIES AND
CONSEQUENCE OF NON-APPEARANCE
xxx xxx xxx
9
13. Setting aside decree ex parte against
defendants— In any case in which a decree is
passed ex parte against a defendant, he may
apply to the Court by which the decree was
passed for an order to set it aside; and if he
satisfies the Court that the summons was not
duly served, or that he was prevented by any
sufficient cause from appearing when the suit
was called on for hearing, the Court shall make
an order setting aside the decree as against
him upon such terms as to costs, payment into
Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit;
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:
Provided further that no Court shall set aside a
decree passed ex parte merely on the ground
that there has been an irregularity in the
service of summons, if it is satisfied that the
defendant had notice of the date of hearing and
had sufficient time to appear and answer the
plaintiff's claim.
Explanation.—Where there has been an appeal
against a decree passed ex parte under this
rule, and the appeal has been disposed of on
any ground other than the ground that the
appellant has withdrawn the appeal, no
application shall lie under this rule for setting
aside the ex parte decree.”
14.The aforesaid provision lays down the procedure for
setting aside a decree passed ex parte. The court can
set aside an ex parte decree only on two grounds –
firstly, that the summons was not duly served; and
secondly, that the defendant was prevented by
sufficient cause from appearing when the suit was
10
called out. Once an ex parte decree is set aside, it
basically means that the parties are relegated to the
same position on which they stood before the passing of
the ex-parte decree.
15.In the present case, the stand of the respondent No. 1
is that she was never served in the suit and she came
to know about the proceedings only on the date when
the decree was executed and the possession of the land
was taken from her. On the same day itself she filed an
application for setting aside the ex parte decree. This
application was dismissed by the trial court. The lower
appellate court allowed the appeal filed by the
respondent No. 1 herein and set aside the ex parte
decree on the ground that she had not been served
properly in the suit and, therefore, she had a
reasonable cause for not appearing on the date on
which the suit was called up.
16.In the present case, the result would be that the
respondent No.1, Shanti Devi would be relegated to the
position at which she was when she was proceeded
against ex parte which would be the date on which the
11
written statement was to be filed. There is no manner
of doubt that the effect of setting aside an ex parte
decree is to restore the parties to the position at which
they were prior to the passing of the decree and relegate
them to the position on which they were when the
defendant was proceeded against ex parte. The parties
are restored to the position existing prior to the date
the order proceeding against the defendant ex parte
was passed. No authoritative pronouncement of this
Court has been placed before us in this regard.
However, we may refer to the judgments passed by
various High Courts in the case of Kumararu
Narayanaru v. Padmanabha Kurup Gopala Kurup2
,
Beerankoya Haji v. P.P. Mohammedkutty 3
, Shah
Bharat Kumar v. M/s. Motilal and Bharulal 4
, Aziz
Ahmed Patel v. I.A. Patel 5
, Mst. Lakshmi Devi v.
Roongta & Co.
6
, Venkatasubbiah v.
Lakshminarasimhan 7
, which have taken this view.
2 AIR 1953 (TC) 426
3 AIR 1986 Ker 10
4 AIR 1980 Guj 50
5 AIR 1974 (A.P.) 1
6 AIR 1962 (All.) 381
7 49 Mad.L.J.273
12
17.It would be pertinent to mention that the mere fact that
the ex parte decree has been executed does not
disentitle the defendant from applying under Order IX
Rule 13, CPC to get the same set aside. Reference may
be made to Sm. Sankaribala Dutta v. Sm. Asita
Barani Dasi and others8
and Mst. Fatima Khatoon
v. Swarup Singh9
. Once the decree is set aside,
restitution or restoration can be ordered.
18.On behalf of the appellant it has been urged that in
Shyam Sunder’s case (supra), this Court made no
exception for ex-parte decrees while setting out the
principles which have been quoted hereinabove and the
ex parte decree should be treated to be the decree of
the court of first instance. That was not an issue
raised before the Constitution Bench. This Court was
only concerned with the issue whether the amendment
to the 1913 Act taking away the right of pre-emption
vested in the co-sharer introduced after the decree was
passed by the court of first instance and the effect
8 AIR 1977 Calcutta 289
9 AIR 1984 Calcutta 257
13
thereof. The issue which is raised in this case was
neither directly nor impliedly the subject matter of
decision in Shyam Sundar’s case (supra).
19.An ex parte decree is passed when the court believes
that the defendant has been served but is not
appearing in court despite service of summons. In the
present case, the appellate court while setting aside the
ex parte decree, has come to the conclusion that the
defendant Shanti Devi (respondent no. 1 herein) was
not served and, therefore, the court had wrongly
proceeded against her ex parte. That finding has been
upheld till this Court. In our view, the effect of this
would be that the ex parte decree, on its being set
aside, would cease to exist and become non-est. After
the ex parte decree is set aside, it is no decree in the
eyes of law. The decree passed by the trial court on
merits should be treated as the decree of the first court.
We may make it clear that we are not dealing with
those cases where a case has been decided on merits
and the decree is set aside by the appellate court on
14
any other ground and the matter remanded to the trial
court for decision afresh. We leave that question open.
20.Here, we are dealing with a case where the defendant
was proceeded against ex parte and that order has been
set aside on the ground that she has not been served
and, therefore, she has been relegated to the position
existing on the date she was proceeded against
ex-parte, i.e., 6th April, 1990. After the amendment was
introduced on 17th May, 1995, there was no right
existing in the plaintiff to file a suit for pre-emption.
Since the decree on contest was passed on 27th
November, 1999 the plaintiff had no existing right of
pre-emption on that date and the suit was rightly
dismissed. This decree is the only subsisting decree of
the first court.
21.Shri Amarendra Sharan, learned senior counsel
appearing for the appellant urged that since possession
of the property was taken as far back as 7th June, 1990,
no restitution can be ordered at this belated stage and,
therefore, there is no point in upholding the decree. On
the other hand, Shri Shantwanu Singh, learned
15
counsel appearing for the respondent No. 1 has urged
that this Court should exercise its power under Article
142 of the Constitution of India and direct that the
property be restored to the respondent No. 1, who has
been litigating for many years.
22.We cannot accept either of the two submissions. The
limitation for restitution under the Limitation Act is 12
years. The ex parte decree was set aside on 28th
August, 1998 and thereafter, the appellant has been
litigating at various levels. If the appellant had
obtained stay order(s) during this period, obviously the
period for which the stay was granted, would have to be
excluded while calculating the period of limitation.
This is not the job of this Court. It is for the executing
court to decide whether the restitution petition, if any
filed, is within the limitation or not. It is only the court
which passed the original decree, which can order
restitution. Restitution cannot be granted by the
Supreme Court, as held in the case of State Bank of
Saurashtra v. Chitranjan Rangnath10
.
10 (1980) 4 SCC 516.
16
23.In view of the above, we find no merit in the appeal,
which is accordingly dismissed. Status quo granted
vide order dated 27.11.2006, which was directed to be
continued by order dated 30.03.2009, stands vacated.
....................................J.
(MADAN B. LOKUR)
....................................J.
(DEEPAK GUPTA)
New Delhi
September 08, 2017
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2062 OF 2009
Vijay Singh … Appellant(s)
Versus
Shanti Devi and Anr. …Respondent(s)
J U D G M E N T
Deepak Gupta, J.
1. “Whether, in a suit for pre-emption, an ex parte decree
which is later set aside, can be termed to be the decree
of the court of first instance” is the question which
arises for decision in this appeal.
2. The undisputed facts are that one Roop Chand sold the
suit land in favour of Shanti Devi, respondent No. 1
2
herein. Vijay Singh, appellant who was a co-sharer
with Roop Chand, filed a suit for possession on the
basis of right of pre-emption granted to a co-sharer
under the Punjab Pre-emption Act, 1913 (for short ‘the
1913 Act’) on 6th November, 1989. The defendant
Shanti Devi was proceeded against ex parte on 6th
April, 1990. Thereafter, an ex parte decree was passed
against her on 10th April, 1990. Pursuant to the
decree, execution petition was filed and the appellant
Vijay Kumar took possession of the suit land on 7th
June, 1990.
3. On the same day, i.e., 7th June, 1990, Shanti Devi filed
an application under Order IX Rule 13 of the Code of
Civil Procedure (for short ‘CPC’) for setting aside the
decree dated 10th April, 1990 claiming that she had
not received the summons and had no knowledge of the
proceedings. It was alleged that only when possession
was taken on 7th June, 1990 did she become aware
that the appellant Vijay Kumar had initiated some legal
proceedings against her. The trial court dismissed the
application filed by Shanti Devi for setting aside the ex
3
parte decree on 4th October, 1993. Thereafter, Shanti
Devi filed an appeal before the appellate court.
4. In the meantime, on 17th May, 1995 the State of
Haryana amended Section 15 of the 1913 Act. The net
effect of this amendment was that the amendment took
away the right of pre-emption of a co-sharer and the
right of pre-emption was only retained with a tenant.
5. The appellate court allowed the application filed by
Shanti Devi and set aside ex parte decree on 28th
August, 1998. The appellant herein challenged the
order of the appellate court by filing civil revision
petition in the Punjab and Haryana High Court, which
was dismissed on 5th November, 1999. It would be
pertinent to mention that the learned Judge, while
dismissing the revision petition, also observed that in
view of the amendment to the 1913 Act the appellant
herein had no right to pre-empt the sale of the suit
land. The appellant then filed Petition for Special Leave
to Appeal (Civil) No. 3488 of 2000 before this Court,
which was disposed of on 10th March, 2000. This Court
not only dismissed the petition but also ordered that
4
the trial court would decide the suit afresh without
being influenced by the observations on merit, made by
the learned Judge of the High Court.
6. Thereafter, the suit was tried afresh and the main
ground raised by Shanti Devi was that in view of the
amendment made to the 1913 Act, the right of
pre-emption was no longer available to the appellant.
On the other hand, the appellant contended that the
date of decree of the first court was 10th April,
1990 when the ex parte decree was passed and,
therefore, the rights of the parties are governed by the
law as it stood on that date.
7. After remand, the learned trial court dismissed the suit
of the appellant on 27th November, 1999 on the ground
that by virtue of amendment to the 1913 Act, the right
of pre-emption stood extinguished. The appellant,
thereafter, filed first appeal before the trial court, which
was also dismissed. The regular second appeal also
met the same fate.
8. The issue to be decided is a legal issue which stands in
a narrow compass. Before dealing with the issue itself,
5
it would be pertinent to refer to the Constitution Bench
judgment of this Court in the case of Shyam Sunder
& Ors. v. Ram Kumar & Anr., 1
wherein this Court
considered the effect of the amendment made to the
1913 Act. This Court held that if Section 15 of the
1913 Act was amended during the pendency of the
appeal before the Supreme Court, the decree of
pre-emption would not be affected by such amendment.
After discussing the entire law, the Constitution Bench
culled out the following legal principles:
“10. On an analysis of the aforesaid decisions
referred to in the first category of decisions, the
legal principles that emerge are these:
1. The pre-emptor must have the right to
pre-empt on the date of sale, on the date of
filing of the suit and on the date of passing of
the decree by the court of the first instance
only.
2. The pre-emptor who claims the right to
pre-empt the sale on the date of the sale must
prove that such right continued to subsist till
the passing of the decree of the first court. If
the claimant loses that right or a vendee
improves his right equal or above the right of
the claimant before the adjudication of suit, the
suit for pre-emption must fail.
3. A pre-emptor who has a right to pre-empt a
sale on the date of institution of the suit and
on the date of passing of decree, the loss of
such right subsequent to the decree of the first
1 (2001) 8 SCC 24,
6
court would not affect his right or
maintainability of the suit for pre-emption.
4. A pre-emptor who after proving his right on
the date of sale, on the date of filing the suit
and on the date of passing of the decree by the
first court, has obtained a decree for
pre-emption by the court of first instance, such
right cannot be taken away by subsequent
legislation during pendency of the appeal filed
against the decree unless such legislation has
retrospective operation.”
9. In view of the decision of the Constitution Bench, it is
not necessary to refer to various other judgments cited
before us. A perusal of the principles laid down by the
Constitution Bench clearly indicates that the
pre-emptor should possess the right to pre-empt on
three dates:
(i) the date of sale;
(ii) the date of filing of the suit; and
(iii) the date of passing of the decree by the court of first
instance only.
As far as the first two conditions are concerned, there
is no dispute that the appellant possessed the right of
pre-emption on the date of sale as also on the date of filing of
the suit since he was a co-sharer in the land in question. It
is also not disputed that on 10th April, 1990 when the ex
7
parte decree was passed in favour of the appellant he had a
valid legal right of pre-emption in his favour.
10.The question to be decided is what is the effect of
setting aside of the ex parte decree and the passing of
fresh decree by the court of first instance on 27th
November, 1999 on which date, admittedly, the
appellant did not have a valid right to pre-empt the
sale in view of the amendment to the 1913 Act.
11.Order IX Rule 6 of CPC, reads as follows:
“ORDER IX- APPEARANCE OF PARTIES AND
CONSEQUENCE OF NON-APPEARANCE
xxx xxx xxx
6. Procedure when only plaintiff appears.- (1)
Where the plaintiff appears and the defendant
does not appear when the suit is called on for
hearing, then
(a) When summons duly served—lf it is
proved that the summons was duly
served, the court may make an order that
the suit be heard ex parte;
(b) When summons not duly served—If
it is not proved that the summons was
duly served, the court shall direct a
second summons to be issued and served
on the defendant;
(c) When summons served but not in
due time—If it is proved that the
summons was served on the defendant,
8
but not in sufficient time to enable him to
appear and answer on the day fixed in the
summons, the court shall postpone the
hearing of the suit to a future day to be
fixed by the court, and shall direct notice
of such day to be given to the defendant.
(2) Where it is owing to the plaintiff’s default
that the summons was not duly served or was
not served in sufficient time, the court shall
order the plaintiff to pay the costs occasioned
by the postponement.”
12.We are only concerned with clause (a), which provides
that if summons are duly served and the defendant
does not put in appearance, the court may make an
order that the suit would be heard ex parte. In this
case, this was the procedure followed and an ex parte
decree was passed. There is no manner of doubt that
an ex parte decree is also a valid decree. It has the
same force as a decree which is passed on contest. As
long as the ex parte decree is not recalled or set aside,
it is legal and binding upon the parties.
13.Order IX Rule 13, CPC reads as follows:
“ORDER IX- APPEARANCE OF PARTIES AND
CONSEQUENCE OF NON-APPEARANCE
xxx xxx xxx
9
13. Setting aside decree ex parte against
defendants— In any case in which a decree is
passed ex parte against a defendant, he may
apply to the Court by which the decree was
passed for an order to set it aside; and if he
satisfies the Court that the summons was not
duly served, or that he was prevented by any
sufficient cause from appearing when the suit
was called on for hearing, the Court shall make
an order setting aside the decree as against
him upon such terms as to costs, payment into
Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit;
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:
Provided further that no Court shall set aside a
decree passed ex parte merely on the ground
that there has been an irregularity in the
service of summons, if it is satisfied that the
defendant had notice of the date of hearing and
had sufficient time to appear and answer the
plaintiff's claim.
Explanation.—Where there has been an appeal
against a decree passed ex parte under this
rule, and the appeal has been disposed of on
any ground other than the ground that the
appellant has withdrawn the appeal, no
application shall lie under this rule for setting
aside the ex parte decree.”
14.The aforesaid provision lays down the procedure for
setting aside a decree passed ex parte. The court can
set aside an ex parte decree only on two grounds –
firstly, that the summons was not duly served; and
secondly, that the defendant was prevented by
sufficient cause from appearing when the suit was
10
called out. Once an ex parte decree is set aside, it
basically means that the parties are relegated to the
same position on which they stood before the passing of
the ex-parte decree.
15.In the present case, the stand of the respondent No. 1
is that she was never served in the suit and she came
to know about the proceedings only on the date when
the decree was executed and the possession of the land
was taken from her. On the same day itself she filed an
application for setting aside the ex parte decree. This
application was dismissed by the trial court. The lower
appellate court allowed the appeal filed by the
respondent No. 1 herein and set aside the ex parte
decree on the ground that she had not been served
properly in the suit and, therefore, she had a
reasonable cause for not appearing on the date on
which the suit was called up.
16.In the present case, the result would be that the
respondent No.1, Shanti Devi would be relegated to the
position at which she was when she was proceeded
against ex parte which would be the date on which the
11
written statement was to be filed. There is no manner
of doubt that the effect of setting aside an ex parte
decree is to restore the parties to the position at which
they were prior to the passing of the decree and relegate
them to the position on which they were when the
defendant was proceeded against ex parte. The parties
are restored to the position existing prior to the date
the order proceeding against the defendant ex parte
was passed. No authoritative pronouncement of this
Court has been placed before us in this regard.
However, we may refer to the judgments passed by
various High Courts in the case of Kumararu
Narayanaru v. Padmanabha Kurup Gopala Kurup2
,
Beerankoya Haji v. P.P. Mohammedkutty 3
, Shah
Bharat Kumar v. M/s. Motilal and Bharulal 4
, Aziz
Ahmed Patel v. I.A. Patel 5
, Mst. Lakshmi Devi v.
Roongta & Co.
6
, Venkatasubbiah v.
Lakshminarasimhan 7
, which have taken this view.
2 AIR 1953 (TC) 426
3 AIR 1986 Ker 10
4 AIR 1980 Guj 50
5 AIR 1974 (A.P.) 1
6 AIR 1962 (All.) 381
7 49 Mad.L.J.273
12
17.It would be pertinent to mention that the mere fact that
the ex parte decree has been executed does not
disentitle the defendant from applying under Order IX
Rule 13, CPC to get the same set aside. Reference may
be made to Sm. Sankaribala Dutta v. Sm. Asita
Barani Dasi and others8
and Mst. Fatima Khatoon
v. Swarup Singh9
. Once the decree is set aside,
restitution or restoration can be ordered.
18.On behalf of the appellant it has been urged that in
Shyam Sunder’s case (supra), this Court made no
exception for ex-parte decrees while setting out the
principles which have been quoted hereinabove and the
ex parte decree should be treated to be the decree of
the court of first instance. That was not an issue
raised before the Constitution Bench. This Court was
only concerned with the issue whether the amendment
to the 1913 Act taking away the right of pre-emption
vested in the co-sharer introduced after the decree was
passed by the court of first instance and the effect
8 AIR 1977 Calcutta 289
9 AIR 1984 Calcutta 257
13
thereof. The issue which is raised in this case was
neither directly nor impliedly the subject matter of
decision in Shyam Sundar’s case (supra).
19.An ex parte decree is passed when the court believes
that the defendant has been served but is not
appearing in court despite service of summons. In the
present case, the appellate court while setting aside the
ex parte decree, has come to the conclusion that the
defendant Shanti Devi (respondent no. 1 herein) was
not served and, therefore, the court had wrongly
proceeded against her ex parte. That finding has been
upheld till this Court. In our view, the effect of this
would be that the ex parte decree, on its being set
aside, would cease to exist and become non-est. After
the ex parte decree is set aside, it is no decree in the
eyes of law. The decree passed by the trial court on
merits should be treated as the decree of the first court.
We may make it clear that we are not dealing with
those cases where a case has been decided on merits
and the decree is set aside by the appellate court on
14
any other ground and the matter remanded to the trial
court for decision afresh. We leave that question open.
20.Here, we are dealing with a case where the defendant
was proceeded against ex parte and that order has been
set aside on the ground that she has not been served
and, therefore, she has been relegated to the position
existing on the date she was proceeded against
ex-parte, i.e., 6th April, 1990. After the amendment was
introduced on 17th May, 1995, there was no right
existing in the plaintiff to file a suit for pre-emption.
Since the decree on contest was passed on 27th
November, 1999 the plaintiff had no existing right of
pre-emption on that date and the suit was rightly
dismissed. This decree is the only subsisting decree of
the first court.
21.Shri Amarendra Sharan, learned senior counsel
appearing for the appellant urged that since possession
of the property was taken as far back as 7th June, 1990,
no restitution can be ordered at this belated stage and,
therefore, there is no point in upholding the decree. On
the other hand, Shri Shantwanu Singh, learned
15
counsel appearing for the respondent No. 1 has urged
that this Court should exercise its power under Article
142 of the Constitution of India and direct that the
property be restored to the respondent No. 1, who has
been litigating for many years.
22.We cannot accept either of the two submissions. The
limitation for restitution under the Limitation Act is 12
years. The ex parte decree was set aside on 28th
August, 1998 and thereafter, the appellant has been
litigating at various levels. If the appellant had
obtained stay order(s) during this period, obviously the
period for which the stay was granted, would have to be
excluded while calculating the period of limitation.
This is not the job of this Court. It is for the executing
court to decide whether the restitution petition, if any
filed, is within the limitation or not. It is only the court
which passed the original decree, which can order
restitution. Restitution cannot be granted by the
Supreme Court, as held in the case of State Bank of
Saurashtra v. Chitranjan Rangnath10
.
10 (1980) 4 SCC 516.
16
23.In view of the above, we find no merit in the appeal,
which is accordingly dismissed. Status quo granted
vide order dated 27.11.2006, which was directed to be
continued by order dated 30.03.2009, stands vacated.
....................................J.
(MADAN B. LOKUR)
....................................J.
(DEEPAK GUPTA)
New Delhi
September 08, 2017
