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2025 Supreme(Online)(UK) 2616
HIGH COURT OF UTTARAKHAND
MAHESH KUMAR PRAJAPATI – Appellant
Versus
ASHISH MOHAN – Respondent
AO 418 / 2024
SL. N o.
D a t e
Office N ot e s, r e por t s, or de r s or pr oce e dings or dir e ct ions a nd Re gist r a r ’s or de r w it h Signa t ur e s
COURT’S OR JUD GE’S ORD ERS
4 3 A.O No.418 of 2024 H on’ble Alok M a hr a , J. Mr. Shivam Sharm a, Advocat e for t he appellant . Mr. Siddhart ha Singh, Advocat e for t he respondent . This Appeal From Order has been 2. filed, challenging t he order dat ed 01.08.2024 passed by learned Civil Judge ( Senior Division) , Vikas Nagar, Dehradun in Misc. Case No.18 of 2019, whereby applicat ion filed by t he appellant under Order 9 Rule 13 C.P.C., seeking set t ing aside of t he ex- part e decree, has been dism issed. . The principal ground canvassed by t he appellant in t he present Appeal is t hat t he not ice of t he suit was never served upon him and t hat at t he t im e when t he not ice cam e t o be published in t he daily newspaper, nam ely, Rasht riya Sahara, t he appellant was not at Dehradun and, consequent ly, he had no knowledge of t he pendency of t he proceedings. I t is furt her cont ended t hat t he appellant , for t he very first t im e, becam e aware of t he ex- part e decree only on 28.09.2019, when upon visit ing t he disput ed propert y, he was apprised by cert ain persons t hat t he suit had already been decreed ex- part e, whereaft er he im m ediat ely cont act ed his counsel and preferred an applicat ion under Order I X Rule 13 C.P.C. on 10.10.2019, seeking recall of t he ex- part e decree. . Per cont ra, learned counsel appearing on behalf of t he respondent subm it s t hat t he appellant has no locus
st andi t o assail t he im pugned order, inasm uch as, t he land in disput e had already been alienat ed by t he appellant t hrough a regist ered sale deed dat ed 07.08.2019, m uch prior t o t he filing of t he applicat ion under Order I X Rule 13 C.P.C. I t is furt her subm it t ed t hat subsequent purchasers of t he said propert y, being direct ly aggrieved by t he ex- part e decree, have already availed t he appropriat e legal rem edy by inst it ut ing a First Appeal before t his Court , wherein t he validit y of t he ex- part e decree is under j udicial scrut iny. Learned counsel would subm it t hat since t he right s in t he disput ed propert y now vest in t he purchasers and t heir challenge t o t he decree is already subj udice, t he present Appeal at t he inst ance of t he appellant is m isconceived and devoid of m erit s. Heard learned counsel for t he part ies 5. at lengt h and carefully exam ined t he m at erial available on record. I t is evident t hat t he learned t rial Court , upon affording opport unit y t o t he respondent s t o file obj ect ions and upon due appreciat ion of t he evidence placed before it , proceeded t o dism iss t he appellant ’s applicat ion under Order I X Rule 13 C.P.C. by a well- reasoned order, recording a cat egorical finding t hat t he appellant had sufficient not ice of t he proceedings, inasm uch as, t he sum m ons were duly served by regist ered post as well as t hrough publicat ion in t he daily newspaper. t he case of “ Parim al Vs. Veena 6. I n alias Bhart i” , report ed in ( 2011) 3 SCC 545, t he Hon’ble Apex Court has exam ined t he scope of Order I X Rule 13 of t he Code of Civil Procedure, 1908, relat ing t o set t ing aside of an ex- part e decree. The Court held t hat an ex- part e decree can be set aside only if t he defendant sat isfies t he Court t hat t he sum m
