1. The order dated 02 August, 2012 in E.A.No.50 of 2011 in E.P.No.150 of 2006 in O.S.No.349 of 2004, dismissing the application filed under Section 5 of the Limitation Act, to condone the delay in filing the application to set aside the exparte order is challenged in C.R.P.(NPD)(MD)No.2497 of 2012.

2. The order dated 21 December, 2012 in I.A.No.172 of 2011 in O.S.No.349 of 2004, dismissing the application filed under Section 5 of the Limitation Act to condone the delay in filing the application to set aside the exparte decree is challenged in C.R.P.(NPD)(MD)No.262 of 2013.

3. The first respondent filed a suit in O.S.No.349 of 2004 against the petitioner and the second respondent, praying for a decree of specific performance on the strength of the agreement dated 03 April, 1998. The petitioner failed to appear before the Trial Court and the same resulted in passing an exparte decree. The first respondent filed Execution Petition in E.P.No.150 of 2006, to execute the decree dated 06 February, 2003 in O.S.No.22 of 2000, which was re-numbered as O.S.No.349 of 2004. The Trial Court executed the decree. The petitioner, thereafter, filed application in E.A.No.50 of 2011 to condone the delay in filing the application to set aside the exparte order. The petitioner filed another application in I.A.No.172 of 2011 to condone the delay in filing the application to set aside the exparte decree passed in O.S.No.349 of 2004. The Trial Court dismissed both the applications on the ground that the decree has already been executed and in case it is set aside, at this point of time, the first respondent would be put to great loss. Feeling aggrieved, the petitioner has come up with the Civil Revision Petitions.

4. Heard the learned counsel for the petitioner and the learned counsel for the first respondent.

5. The first respondent preferred the suit in O.S.No.349 of 2004 for specific performance, contending that the petitioner herein executed a sale agreement dated 03 April, 1998, but failed to execute the sale deed, after receiving the balance sale consideration. The petitioner remained exparte. The Trial Court, therefore, passed an exparte decree. It is true that the decree was subsequently executed.

6. The core question is as to whether the decree passed by the Trial Court would satisfy Section 2(9) of the Code of Civil Procedure, 1908.

7. The relief of specific performance is a discretionary remedy. Merely because the plaintiff in a suit for specific performance proved the execution of sale agreement, he would not get a right automatically for a decree. The relief of specific performance, being a discretionary remedy, the Court should see the background facts. The Court should be satisfied that the conduct of the plaintiff has been fair and as such, he is entitled for a decree. In the subject case, the Court simply passed a decree, consequent to the non-appearance of the petitioner. There was no discussion at all. It was a default decree, consequent to the non-appearance of the petitioner. The Trial Court failed to analyze the matter.

8. It is true that the petitioner filed the applications only after a long period. The Trial Court dismissed the applications solely on the ground that the decree has already been executed. When it is made out that the decree itself was not made in accordance with the provisions of the Civil Procedure Code, no reliance could be placed on such decree.

9. The fact that the defendants were set exparte, would not give power to the Court to pass a decree as prayed for. The Court should consider the plaint and evidence as a whole even in the absence of defendants. The Superior Courts have time and again deprecated the practice of passing exparte judgment and decree solely on account of the non-appearance of defendants.

10. Section 2(9) of Code of Civil Procedure, 1908 defines “judgment” as the statement given by the Judge of the grounds of a decree or order. The judgment in O.S.No.349 of 2004 would not qualify to be