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2020 (11) TMI 1064
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....cree was pending. By relying upon explanation to the said provision, the petitioners claimed that if their appeal stands disposed of, the application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC would be rendered infructuous, thereby causing grave prejudice to them. The respondent No.1 is the original plaintiff/decree holder, on whose behalf it is contended before this Court that the Appellate Court was justified in refusing to stay the proceedings in the appeal, in view of the conduct of the petitioners and that in the interest of justice, no interference was warranted in the impugned order. (4) Since much emphasis has been placed on behalf of respondent No.1 on the facts of the present case which reflect the conduct of the petitioners, it is necessary to refer to the facts leading upto filing of the present writ petition. (5) The respondent No.1 filed Special Civil Suit No.150/2006 for specific performance of contract against respondent No.2 and he further sought a declaration that sale deed dated 21/01/2006 executed by the petitioner No.1 in favour of petitioners No.2 and 3, was null and void. The petitioners appeared in the aforesaid suit on 02/11/2006 a....
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....appeal was disposed of, as per explanation to Order 9 Rule 13 of the CPC, their application for setting aside ex-parte decree would be rendered infructuous. The said application was rejected by the impugned order and the petitioners are before this Court. (8) Mr.M.P.Khajanchi, learned counsel appearing for the petitioners submitted that as per settled position of law, the petitioners were entitled to simultaneously file both the proceedings i.e. application for setting aside of ex-parte decree and the appeal challenging the decree. It was submitted that a perusal of explanation to Order 9 Rule 13 of the CPC would show that if the appeal filed by the petitioners stood disposed of, no application under the said provision for setting aside ex-parte decree would lie. According to the learned counsel for the petitioners, this would render the application for setting aside decree filed on behalf of the petitioners, pending before the Trial Court, infructuous and this would cause grave prejudice to them. It was submitted that the Appellate Court while passing the impugned order and rejecting application at Exh.17, failed to appreciate the position of law and thereby committed a grave err....
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.... the Court for setting aside ex-parte decree by satisfying the Court that in the facts of the case, such an ex-parte decree could not have been passed. There cannot be dispute about the position of law that a defendant who has suffered an ex-parte decree can simultaneously invoke two remedies, firstly, by filing an application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC and secondly, by filing an appeal under Section 96 of the CPC. (11) This position of law has been recognized in all the three judgments relied upon, on behalf of the petitioners. But, it was observed by the Hon'ble Supreme Court in the case of Rani Choudhary (supra) that as per explanation to Order 9 Rule 13 of the CPC, after the appeal filed by the defendant against an exparte decree stood disposed of, it constituted sufficient reason for a ban on proceeding in an application for setting aside ex-parte decree filed by such aggrieved defendant. In the case of Bhanu Kumar Jain (supra), the Hon'ble Supreme Court held that application under Order 9 Rule 13 of the CPC would not be maintainable once the Appellate Court disposes of the appeal, as the decree passed by the Trial Court merges with the....
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....ant of service. The Trial Court passed ex-parte decree against them on 27/06/2009 and after being served before the Executing Court in June 2011 and December 2011, the petitioners again failed to appear before the Executing Court. As a consequence, they were proceeded ex-parte even before the Executing Court. It was only on 09/07/2013 that the petitioners chose to appear before the Executing Court and filed their objections, which were rejected on 12/08/2013 and 05/02/2014. It took the petitioners, a further eight months to file application for setting aside ex-parte decree on 01/10/2014 and more than ten months to file appeal before the Appellate Court on 16/12/2014. The appeal was filed along with an application for condonation of delay of 1970 days. There is no dispute about the fact that even the application for condonation of delay is yet to be decided and that the petitioners are enjoying an interim order in the said proceeding. (16) It is in this backdrop, that the petitioners filed the aforesaid application for stay Exh.17 before the Appellate Court on 13/02/2017 i.e. more than two years after filing the appeal and the application for setting aside of ex-parte decree. Ther....