Kumud Lata Das vs Indu Prasad - 1996 Supreme(SC) 1493

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1996 Supreme(SC) 1493

1996(7) Supreme 380
SUPREME COURT OF INDIA
K. Ramaswamy, Faizan Uddin and G.B.
Pattanaik, JJ.
Kumud Lata Das --Appellant
versus
Indu Prasad -Respondent
Civil Appeal No. 12729 of 1996
(Arising out of SLP (C) No. 12464 of 1996)
Decided on 19-9-1996
Counsel for the Parties :
For the Appellant : M.N. Krishnamani Advocate, S.B. Upadhyay, Advocate.
For the Respondent : A.K. Ganguli, Sr. Advocate (Manish Mishra) Advocate for N.S.Bisht, Advocate.

Headnote:APPEAL-Constitution of India-Article 136-Suit for possession of property from appellant-Plaintiff is mother-in-law of appellant--Proceedings for divorce pending between appellant and her husband-Appellant in possession of property-Set ex parte-Application under Order 9, Rule 13, CPC-Direction to deposit mesne profits per month from date of ex parte decree-Appeal-Whether High Court was right in imposing this condition?-(No)-Such onerous condition is not valid, though discretionary, considering that parties are closely related.
Held : In view of the fact that the parties are closely related and the matter has been disposed of ex parte, we are of the view that it is not a fit case to impose costs of depositing mesne profits from the date of ex-parte decree and to continue to deposit it as a condition to contest the application to set aside ex-parte decree. Moreover, such onerous condition is not valid, though discretionary. (Para 3)

ORDER

Leave granted.

2. This appeal by special leave arises from the order made on April 16, 1996 by the Delhi High Court in I.A. No. 8629/95 is Suit No. 3781/90. This suit was for possession of the property from the appellant. The plaintiff is the mother-in-law of the appellant. The appellant and her husband are not able to live amicably in matrimonial tie. The proceedings for divorce are pending. The appellant is in possession of the property and therefore, the respondent-mother-in-law filed a suit for possession on the basis of her alleged title. The appellant was set ex parte and the application under Order 9, Rule 13, CPC is now pending before the High Court. The application for restoration of the decree has been disposed of with directions to deposit and to continue to deposit mesne profits at the rate of Rs. 2,000/- per month from the date of ex-parte decree. Hence, this appeal by special leave.

3. In view of the fact that the parties are closely related and the matter has been disposed of ex parte, we are of the view that it is not a fit case to impose costs of depositing mesne profits from the date of ex-parte decree and to continue to deposit it as a condition to contest the application to set aside ex-parte decree. Moreover, such onerous condition is not valid, though discretionary.

4. Under these circumstances, we think that the learned Single Judge was not right in imposing the condition of depositing the mesne profits as a condition precedent for execution of the ex-parte decree. The impugned order of the High Court is accordingly set aside. There shall be stay of execution of the ex-parte decree. The matter is remitted to the High Court for fresh consideration of the application for setting aside the decree on merits and in accordance with law.

5. The appeal is allowed. No costs.

Appeal allowed.

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