Sufficient cause must be established for setting aside an ex-parte decree; mere ignorance post-death of a defendant does not suffice.

JUDGMENT :

DEVAN M. DESAI, J.

1. By way of present Appeal, the present appellants have challenged the order dated 12.9.2025 passed by the learned Judge of City Civil & Sessions Court, Ahmedabad in Civil Misc. Application (DC) No.155 of 2024 below Exh.23, by which, the application of present appellants to restore Civil Suit No.908 of 2021 was rejected under Order 9 – Rule 13 of Code of Civil Procedure, 1908 (For short, hereinafter referred to as 'the CPC ’).

2. Heard learned advocate Mr. Y. N. Ravani for the appellants. Perused the record.

3. The brief facts of the case are as under:

4. A civil suit was filed by the present respondent - original plaintiff for the recovery of possession of the suit property, which is situated at District Sub District Ahmedabad – 4 (Paldi) being T.P. Scheme No.26, Final Plot No.147 of village Vasna, Taluka Sabarmati. An ex-parte judgment and decree came to be passed by the learned trial Court on 1.2.2024 in favour of the respondent – plaintiff. The original defendant- mother of present petitioner expired after the judgment and decree on 24.2.2024. An application under Order 9 – Rule 13 of the CPC for setting aside the judgment and decree came to be filed by the present appellants. After hearing the parties, learned Court below rejected the said application. Being aggrieved and dissatisfied with the impugned judgment and order, the appellants are before this Court.

5. Learned advocate for the appellants, at the outset, contended that the learned trial Court passed an ex-parte decree without any opportunity of being heard given to the mother of present appellants against whom the suit was instituted. It is contended that pursuant to a loan transaction, the original defendant executed an agreement to sell in favour of the plaintiffs and thereafter, a registered sale deed was executed in favour of the plaintiffs. It is also contended that the mother of appellants did not receive the full amount of consideration. It is further contended that the plaintiff, by misusing the blank Cheques of the appellant's mother, deposited the same in his bank and on return of Cheques, the plaintiff had filed a complaint under Section 138 of the Negotiable Instrument Act, 1881. It is contended that the transaction was never that of a leave and license as alleged by the plaintiff in the plaint. It is further contended that the property in question is the ownership property of the appellants and their mother, which can be established on perusal of the sale deed. It is therefore contended that the appellants have ownership right in the suit property. It is submitted that the appellants came to know about the impugned judgment and decree from papers which were discovered after the death of mother. The moment, appellants found that a suit has been instituted, inquired about the status of the suit and upon inquiry, they found that the impugned decree has been passed against their mother and the defendant - mother was directed to hand over the full and vacant possession of the suit property. It is contended that if an opportunity is given to permit the appellants to contest the suit, the appellants would be able to establish that the suit of the plaintiff is not maintainable and no decree of possession can be passed against the mother. In support of his contention, learned advocate for the Appellants has relied upon the decision in the case ofM. K. Prasad v. P. Arumugam reported in AIR 2001 SC 2497. By relying upon such decision, it is submitted that while deciding an application under Order 9 – Rule 10 of the CPC , the Court should keep in mind the judgment impugned and the extent of property