1. Suit for pre-emption — Ex parte decree passed and executed — Decree set aside under Order IX Rule 13, CPC — Subsequent legislative amendment extinguishing the right of pre-emption. (Para 1 , 2 , 3 , 4 , 5 )
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2017 Supreme(SC) 919
SUPREME COURT OF INDIA
MADAN B. LOKUR, DEEPAK GUPTA, JJ
Vijay Singh – Appellant(s)
Versus
Shanti Devi and Anr. – Respondent(s)
CIVIL APPEAL NO.2062 OF 2009
Decided On : 08-09-2017
IMPORTANT POINT
Amendment of statute during pendency of appeal would have no effect on the decree appealed against.
Right of pre-emption – relevant dates – limitation.
On setting aside ex parte decree, parties would be relegated to their position as on the date on which the written statement was to be filed.
Execution of ex parte decree is not an impediment in applying for getting it set aside.
The fresh decree passed on merits after setting aside the ex parte decree would be the decree of the first court.
It is for Executing court to decide limitation for restitution. Supreme Court cannot grant restitution.
Headnote:(a) Administration of justice – Practice and procedure – Amendment of statute during pendency of appeal – Would have no effect on the decree appealed against. (Para 8)
(2001) 8 SCC 24 – Relied upon
(b) Punjab Pre-emption Act, 1913 – Section 15 – Appellant having right of pre-emption as co-sharer on the date of sale and on the date of filing of the suit as also on date of passing of the decree – Court of first instance setting aside ex parte decree and passing a fresh decree – Appellant not having right of pre-emption on date of fresh decree. (Para 9)
(c) Punjab Pre-emption Act, 1913 – Section 15 r/w Order IX Rule 6 and 13, Code of Civil Procedure, 1908 – Effect of setting aside ex parte decree – Parties would be relegated to their position as on the date on which the written statement was to be filed. (Para 16)
AIR 1953 (TC) 426; AIR 1986 Ker 10; AIR 1980 Guj 50; AIR 1974 (A.P.) 1; AIR 1962 (All.) 381; 49 Mad.L.J.273 – Cited with approval
(d) Code of Civil Procedure, 1908 – Order IX Rule 13 – Execution of ex parte decree – No impediment in applying for getting it set aside. (Para 17)
AIR 1977 Calcutta 289; AIR 1984 Calcutta 257 – Cited with approval
(e) Code of Civil Procedure, 1908 – Order IX Rule 6 – Ex parte decree – Only when defendant does not appear despite service – On setting aside, such decree become non est and cannot be called decree of the first court – The fresh decree passed on merits after setting aside the ex parte decree would be the decree of the first court. (Para 19, 20)
(2001) 8 SCC 24 – Distinguished
(f) Code of Civil Procedure, 1908 – Order IX Rule 6 and 13 – Possession of property taken pursuant to ex parte decree on 7th June, 1990 – Decree set aside on 28th August, 1998 – Fresh decree passed on 27th November, 1999 – Appellant litigating at various level – Restitution of property – Whether time barred – Limitation Act – 12 years – It is for Executing court to decide limitation – Supreme Court cannot grant restitution. (Para 22)
(1980) 4 SCC 516 – Relied upon
Facts of the case:
One Roop Chand sold the suit land in favour of Shanti Devi, respondent No. 1 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 on 6th November 1989. An ex parte decree was passed against her on 10th April, 1990. The decree was executed and the appellant Vijay Kumar took possession of the suit land on 7th June 1990.
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 setting aside the decree dated 10th April, 1990. The trial court dismissed the application.
In the meantime, on 17th May, 1995 the State of Haryana amended Section 15 of the 1913 Act taking away the right of pre-emption of a co-sharer and the right of pre-emption was only retained with a tenant.
The appellate court allowed the application filed by Shanti Devi and set aside ex parte decree on 28th August, 1998. The appellant filed civil revision petition which was dismissed on 5th November, 1999.
SLP filed by appellant was dismissed and the matter was remanded to the trial court.
The 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.
The question arising in this appeal is “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”.
Finding of the Court:
There is no merit in the appeal.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether an ex parte decree, subsequently set aside, constitutes the decree of the court of first instance for determining the subsistence of a legal right. (Para 6 , 18 )
3. Setting aside an ex parte decree restores parties to their original positions; such a decree becomes non-est and cannot be treated as the first instance decree. (Para 12 , 14 , 16 , 19 , 20 )
4. An ex parte decree set aside under Order IX Rule 13, CPC is non-est; the subsequent decree passed on merits is the decree of the first instance. (Para 19 , 20 )
5. Appeal dismissed; the dismissal of the suit for pre-emption upheld. (Para 23 )
6. On what dates must a pre-emptor possess the right to pre-empt for a suit to be maintainable?
A pre-emptor must possess the right to pre-empt on three specific dates: the date of sale, the date of filing the suit, and the date of passing of the decree by the court of first instance. (Para 8 , 9 )
7. What is the legal effect of setting aside an ex parte decree under Order IX Rule 13 of the CPC?
Setting aside an ex parte decree restores the parties to the position they occupied prior to the passing of the decree, specifically to the position they were in when the defendant was proceeded against ex parte. (Para 14 , 16 , 20 )
8. Does an ex parte decree that is later set aside count as the decree of the court of first instance?
No. Once an ex parte decree is set aside, it ceases to exist and becomes non-est in the eyes of the law. The subsequent decree passed by the trial court on merits is treated as the decree of the first court. (Para 19 , 20 )
9. Can the Supreme Court order restitution after an ex parte decree is set aside?
No. Restitution can only be granted by the court that passed the original decree. The Supreme Court cannot grant restitution, and the executing court must determine if a restitution petition is within the limitation period. (Para 22 )
JUDGMENT
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 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 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 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, 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., (2001) 8 SCC 24 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 amendme
