LexVIJAY SINGH versus SHANTI DEVI AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
(2017] 9 S.C.R. 442
VIJAY SINGH
v.
SHANTI DEVI AND ANR.
(Civil Appeal No. 2062 of2009)
B
SEPTEMBER 08, 2017
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Decree:
Ex-parie decree -.Jn a pre-emption suit- Execution of ex-parte
C
decree resulting in possession of suit land to the plaintiff- Thereafter
ex-parte decree set aside - In the meantime with the amendme111 in
law pre-emption right taken away - In challenge to setting aside of
ex-parte decree was rejected by Supreme Court and trial court was
directed to decide the suit afresh - Trial court dismissed the suit on
D the ground that the right of pre-emption extinguished by rirtue of
the amendment in law - The order was affirmed in the first appeal
as well as second appeal - On appeal, held: Since the ex-parte ··
decree was set aside holding that _defendant was not served and the
trial court had wrongly proceeded against her ex-parte, the ex-parte
decree on its being set aside would cease to exist and become 1101i-
E
est - The contested decree passed by the trial court would be treated
as the decree of the first court - After the amendment in law, there
was no right existing in the plaintiff to file a suit for pre-emption -
Even if the possession of the suit land was taken far back, restitution
can be ordered if within limitation - Code of Civil Procedure, 1908
F - Order IX - Punjab Pre-emption Act, 1913 - Limitation.
Code of Civil Proceedure:
Order IX 1: 13 -Setting aside of ex-parte decree - Permissibility,
after execution thereof - Held: Mere fact that ex-parte decree has
been executed, does not entitle the defendant to get the decree set
G aside.
H
Restitution:
Restitution can be granted only by the Court which passed
the original decree - Restitution cannot be granted by Supreme
Court.
442
VIJAY SINGH v. SHANTI DEVI AND ANR.
443
Dismissing the appeal, the Court
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HELD: l.l An ex parte decree is passed when the court
believes that the def6nilant has been served but is not appeari._g
in court despite service of summons. In the present cas'j the
appellate court while setting aside the ex parte decree, has come
to the conclusion that the defendant was not served and, B
therefore, the court had wrongiy proceeded. against ~er ex parte.
That finding has been upheld till this Court. The effect of this
would be that the ex parte. decree, on its b.eing 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 C
first court. [Para ,19][451-D-E)
1.2 After the amendment was introduced on l 71h 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 271ii
November, 1999 the plaintiff had no existin'g right of pre-emption D
on that date and the suit was rightly dismissed. This decree is
the only subsisting decree of the first cour:!· [Para 20)(451-G;
,, 452-A]
Shyam Sunder & Ors. v. Ram Kumar·& Anr. (20'01)
8 sec 24 : 120011 1 Suppt scR 115 ~ held
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inapplicable .•
Kumararu Narayanaru v. Padmanabha Kurup Gopala
Kurup AIR 1953 (TC) 426; Beerankoya Haji v. P.P.
Mohammedkutty AIR 1986 Ker 10; Shah Bharat Kumar .
v. Mis. Motilai and Bharulal AIR 1980 Guj 50; Aziz
F
Ahmed Patel v. I.A. Patel AIR 1974 (A.P.) 1; Mst.
LakYhmi Devi v. Roongta & Co. AIR 1962 (All.) 381;
Venkatasubbiah v. Lakshminarasimhan 49 Mad. L. J.
273 - referred to.
2. The mere fact that the ex parte decree has been executed
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does not disentiOe the defendant .from applying under Order IX ·
Rule 13, CPC to get the same set aside. [Para 17][450-F-G)
Sm. Sankaribala Dutta v. Sm. Asita Baroni Dasi and
others AIR 1977 Calcutta 289; Mst. Fatima Khatoon
H
444
SUPREME. COURT REPORTS
[201719 S.C.R.
A
v. Swarup Singh AIR ~984 Calcutta 257 - referred to.
3. H is not correct to say that since possession of the
property was taken as far back as 711' June, 1990, no restitution
can be ordered at this belated stage and, therefore, there is no
point in upholding the decree. The limitation for restitution under
B the Limitation ACt is .12 years. The ex parte decree was set aside
on 28'h August, 1998 and thereafter, the appellant has been
litigating at various levels. If the appellant had obtained stay
order{s) dul'ing this period, obviously the period for which the
stay was granted, would have to be excluded while calExcerpt shown. Read the full judgment & AI analysis in Lexace.