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.