LexKEWAL RAM versus SMT. RAM LUBHAI & ORS. AND VICE VERSA
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KEWAL RAM A v. ·-~ SMT. RAM LUBHAI & ORS. AND VICE VERSA MARCH 26, 1987 [V. KHALID AND G.L. OZA JJ.] B )- Code of Civil Procedure, 1908, Order JX Rule 13 scope of- • Application for setting aside an exparte decree passed by the Trial Court as well as by the Appellate Court-Whether an application filed under - ;..~ Order IX Rule 13 before the Trial Court is in order. c Joint Decree in a pre-emption suit passed against three defendants one contesting and the other two ex parte and unserved and confirmed ~ ~ by the appellate court-Trial Court accepting an application under Order IX Rule 13 by the unserved defendants, and setting aside the decree against them only-Propriety of the order. D One Kain Ram was the owner of 90 Kanals of land. He sold this land in favour of three brothers, Kewal Ram, Chet Ram and Kuldip Ram for a consideration of Rs.65,000 by a registered sale deed dated 1.8.1966. Kewal Ram is residing in Village Badala in Jullunder District. <>- ··~ Chet Ram and Kuldip Ram were residing at 71, Windsor Road, Forest Gate, London. E Smt. Ram Lubhai, minor daughter of Kain Ram filed a suit for possession of the land on the ground that she being the daughter of the vendor had superior right of pre-emption as against the vendees who 't were strangers. Kewal Ram alone was served in the suit. The other two 'J. were not served. Substituted service was, therefore, taken for service on F them by publication in a vernacular paper. The suit was decreed on ' ' 31.7.1969 against all the three defendants, ex parte against Chet Ram and Kuldeep Ram. Kewal Ram filed an appeal against this decree and judgment. He made his brothers Chet Ram and Kuldip Ram as pro- for ma respondents giving their village address for service. In the appeal also they were served by substituted service. The appeal was heard on G 5.1.1971 and was dismissed. ---', On 24.3.1971, Kuldip Ram and Chet Ram tiled an application under Order 9, Rule 13 ofC.P.C. in the Trial Court for setting aside the ex-parte decree against them on the ground that they were neither H served in the Trial Court nor in the Appellate Court. The Trial Court 685 686 SUPREME COURT REPORTS . (1987] 2 S.C.R. A accepted the application and set aside the decree passed. Against this ·-y~. order dated 10.1.1972, the plaintiff filed a revision petition in the High Court of Pnnjab and Haryana as C.R.P. No. 147 of 1972. The High Court felt that there was no error of jurisdiction in the order sought to be revised, but held that since Kewal Ram had contested the suit, there was no ground to set aside the decree against him. On this around, the B petition was partly allowed. The decree against Kewal Ram was allowed to stand but was set aside against the other two. The review petition ~ • tiled by Smt. Ram Lubhai was dismissed by the High Court. Hence the appeals by specialleave. ~- _ Dismissing the appeals, the Court, c HELD: It is well settled that when a decree of the Trial Court is either confirmed, modified or reversed hut the Appellate decree, except when the decree is passed without notice to the parties, the Trial Court decree gets merged in the appellate decree. But when the decree is passed without notice to a party, that decree will not, in law, be a decree D to which he is a party. Equally so in the case of an appellate d.ecree. In this case these two persons were not served in the suit. A decree was passed ex-parte against them without giving them notice of the suit. In law, therefore, there is no decree against them. In the appeal also they were not served. If they had been served in the appeal, things would have been different. They could have put forward their case in appeal E and got appropriate orders passed. But that is not the case here. That being so, there is no bar for an application by them before the Trial Court under Order IX, Rule 13, to set aside the ex-parte decree against them. [689G-H; 690A-B] There is no error of law in allowing a joint decree to stand against ,\ • F the person who contested throughout while setting aside the ex-parte G decree passed against others without serving them personally on admit- ting the application under Order IX Rule 13 C.P.C. [690C] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15 of 1974. From the Judgment and order dated 24. 1.1973 of the Punjab and Haryana High Court in Civil Revision No. 147/72. A.B. Rohtagi, A. Minocha and Mrs. V. Mino
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