Only a defendant in a suit can file an application under Order 9, Rule 13 CPC to set aside an ex-parte decree; a non-party lacks locus standi.

JUDGMENT

Alok Mathur, J.

Heard Sri Vinod Kumar Tiwari, learned counsel for petitioner as well as Sri Rudra Mani Shukla, learned counsel for private respondents.

2. By means of present writ petition, the petitioners have assailed the order dated 14.02.2024 passed by Civil Judge (Jr. Div.), North, court No. 25, Sultanpur whereby rejecting the application under Order 9, Rule 13 CPC preferred by the petitioner as well as order dated 22.03.2024 passed by District Judge, Sultanpur whereby dismissing the Appeal No. 124/2024 preferred by the petitioner against the order of Civil Judge.

3. The facts in brief are that respondent No. 3 had filed a suit for permanent injunction against respondent No.7. During suit proceedings, parties had entered into a compromise which was filed before the trial court and the suit was also decreed on the basis of compromise by means of order dated 12.03.2022. The Civil Judge (Jr. Div.), Sultanpur in its order has specifically recorded that the parties presented the compromise before this Court and the respective counsel had identified the parties to the said compromise on the basis of which the suit was decreed.

4. Subsequently, the petitioner claiming himself to be aggrieved by judgment and order dated 12.03.2022, had moved an application Order 9, Rule 13 CPC for setting side of the said order. In his application, he has stated that he is the owner of the disputed property and only when proceedings for demarcation of the said property was initiated, then the petitioner came to know about the judgment dated 12.03.2022 against which he moved an application Order 9, Rule 13 CPC.

5. The trial court has rejected the application firstly on the ground of delay and secondly on the ground of maintainability. On the ground of delay, it was stated that petitioner could not sufficiently explained the delay of nearly two years in filing the application Order 9, Rule 13 CPC and secondly it considered the fact that only a defendant against whom the proceedings have been conducted ex-parte can approach the court for moving an application under Order 9, Rule 13 CPC and the applicant was not a party to the suit proceedings could not maintain the application consequently rejected his application. The petitioner being aggrieved by the order of the trial court dated 14.02.2024 preferred a miscellaneous civil appeal before the District Judge, Sultanpur.

6. The District Judge, Sultanpur also affirmed the findings recorded by the trial court dated 14.02.2024 where he has noticed that the petitioner was neither party in the Original Suit No. 399/2008 nor any ex-parte decree was passed in the said suit and consequently none of the ingredients mentioned in the Order 9, Rule 13 CPC was satisfied by the petitioner and accordingly rejected the appeal. The petitioner while assailing the impugned orders dated 14.02.2024 as well as 22.03.2024 has submitted that firstly the plaintiff had not made the petitioner as a party in the suit proceedings despite the fact that he is a necessary party and is the owner of the disputed property, and therefore he is person aggrieved, and accordingly an application for setting aside ex-parte order would be maintainable at his behest.

7. He submits that the parties in the suit proceedings had fraudulently entered into a compromise in which the petitioner was never a party nor was he made aware of the said compromise and accordingly the suit was decreed. He submits that he was a necessary party and ought to have been made a defendant in the suit proceedings, as a result of which judgment and order dated 22.03.2022, the disputed property has been demolished and the petitioner has not been heard by the trial court and accordingly submits that grave injustice has been meted out to him and accordingly prayed for setting aside of the impugned orders.

8. Learned Standing Counsel on the other hand has submitted that there is no infirmity in the impugned orders. He further submits that it is undisputed that the p