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2010 (6) Supreme 7
SUPREME COURT OF INDIA
V.S. Sirpurkar and Dr. Mukundakam Sharma, JJ.
Bhagmal & Ors. — Appellants
versus
Kunwar Lal & Ors. — Respondents
Civil Appeal No. 5875 of 2005
Decided on : 27-7-2010
Facts of the Case :
A Suit was filed herein in the instant case by respondents for declaration of title, possession and permanent injunction against the appellants/defendants in respect of the house in dispute. The Court proceeded ex-parte and decree came to be passed. Application was filed by appellants under Order IX Rule 13 read with Section 151 of ‘CPC’ for setting aside ex-parte decree. Said application was Dismissed by Trial Court, holding said application to be barred by time. Appeal thereagainst was Allowed by Appellate Court. High Court held that application filed by appellants/defendants under Order IX Rule 13 was barred by time and the appellate Court had not recorded any finding on the question as to whether the filing of application under Section 5 of Limitation Act was necessary or not and, that appellate Court had exceeded its jurisdiction in allowing application without condoning the delay.
2.Present Appeal has been preferred against order passed by High Court allowing Revision and thereby restoring order of Trial Court.
Findings of the Court :
The appellants/defendants had clearly pleaded that they did not earlier come to Court on account of fact that they did not know about order passed by Court proceeding ex-parte and also the ex-parte decree which was passed. It was further clearly pleaded that they came to know about decree when they were served with the execution notice . The question of filing Order IX Rule 13 application was, rightly considered by appellate Court on merits and appellate Court was absolutely right in coming to conclusion that appellants/defendants were fully justified in filing the application under Order IX Rule 13 CPC at the time when they actually filed it and delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting ex-parte proceedings against them. Under such circumstances, High Court should not have taken the hyper-technical view that no separate application was filed under Section 5.Impugned judgment of High Court was set aside and that of Trial Court restored. Appeal was allowed.
Result : Appeal allowed.
JUDGMENT
V.S. Sirpurkar, J. —
1.The order passed by the High Court allowing a Civil Revision and thereby restoring the order of the Trial Court is challenged herein. A Civil Suit bearing No. 321-A of 1984 came to be filed by the respondents against the father of the petitioner No. 1 namely Kallu. Kallu died during the pendency of the suit and his legal heirs were brought on record. The suit was for declaration of title, possession and permanent injunction against the appellants/defendants in respect of the house in dispute. The Court proceeded ex-parte and the decree came to be passed. It is only when the execution proceeding started that the appellants/defendants allegedly came to know about the decree and moved an application under Order IX Rule 13 read with Section 151 of the Civil Procedure Code (hereinafter called ‘CPC’ for short) for setting aside the ex-parte decree.
2.According to the appellants/defendants, this application was moved within 30 days from the date of their knowledge of ex-parte decree. The appellants/defendants had pointed out that there was a compromise effected on 10.12.1983, which was an out-of- Court settlement, wherein it was agreed between the parties that the respondent No. 1/plaintiff would withdraw the suit on account of the understanding having been arrived at between the parties. The appellants/defendants further pleaded that since it was the understanding between the parties that the respondent No. 1/plaintiff would withdraw the suit or get it dismissed, they did not attend the further proceedings, which the respondent No. 1/plaintiff continued surreptitiously and hence they did not even know about the ex-parte order and the decree passed against them. It was the stand of the appellants/defendants that since the application had been moved within 30 days from the knowledge, a separate application for condonation of delay was not required. The application under Order IX Rule 13 was dismissed by the Trial Court, which held the said application to be barred by time. A Misc. Civil Appeal came to be filed in the Court of District Judge, Bhopal against that order. There was some delay in filing the said appeal and, therefore, the application under Section 5 of the Limitation Act for condonation of delay was also filed. The appellate Court held that the application filed by the appellants/defendants under Order IX Rule 13 deserved to be allowed and held that the Trial Court had erred in law in not allowing the application. The appeal came to be allowed and the appellate Court directed the Trial Court to decide the case on merits after hearing the parties.
3.A Civil Revision came to be filed under Section 115 CPC before the High Court. The High Court took the view that the application filed by the appellants/defendants under Order IX Rule 13 was barred by time and the appellate Court had not recorded any finding on the question as to whether the filing of the application under Section 5 of the Limitation Act was necessary or not and, therefore, the appellate Court had exceeded its jurisdiction in allowing the application without condoning the delay. On that count, the impugned order of the appellate Court was set aside and that of the Trial Court was restored. Ms. June Chaudhary, learned Senior Counsel appearing on behalf of the appellants invited out attention to the order of the appellate Court, by which the Order IX Rule 13 application of the appellants/defendants was allowed. The learned Senior Counsel pointed out that the appellate Court had, on merits, discussed all the issues and had come to the finding that there indeed was a compromise effected in between the parties, in which there was an understanding arrived at that the respondent No. 1/plaintiff would withdraw his suit in pursuance of the understanding between the parties. The learned Senior Counsel also pointed out that, therefore, the appellants/defendants never attended the Court after 10.12.1983. This was tried to be countered with Shri M
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