Bindu @ Mallahar and Another vs Natthi Singh and Others

Alok Singh, J.—Kehar Singh son of Jawahar Singh has executed one agreement to sell dated 3.2.1995 in favour of Petitioner No. 1 and, thereafter, Kehar Singh has executed one sale deed dated 18.1.1996 in favour of the Petitioners pursuant to the agreement to sell dated 3.2.1995. After the agreement to sell dated 3.2.1995 in favour of Petitioner No. 1, Kehar Singh executed another agreement to sell in favour of Nanak Chand - father of Natthi Singh - Respondent No. 1 on 27.9.1995. A suit for specific performance of the contract pursuant to the agreement to sell dated 27.9.1995 was filed by Nanak Chand proposed vendee and father of Respondent No. 1 against Kehar Singh which was decreed vide judgment and decree dated 11.10.2004. In a suit for specific performance filed by Nanak Chand against Kehar Singh, present Petitioners were also Defendants. However, they were proceeded ex-parte and decree passed dated 11.10.2004 was ex-parte against the present Petitioners. Thereafter, present Petitioners moved an application under Order 9 Rule 13 CPC for setting aside judgment and decree dated 11.10.2004 which is said to be pending.

Learned Counsel for the Petitioners vehemently argued that since agreement to sell in favour of Petitioner No. 2 dated 3.2.1995 was prior in time to the agreement to sell in favour of Nanak Chand - father of Respondent No. 1 dated 27.9.1995 and prior to the filing of the suit for specific performance by Nanak Chand sale deed was also executed by Kehar Singh in favour of the Petitioners in pursuant to the agreement to sell dated 3.2.1995, hence, suit for specific performance filed by Nanak Chand pursuant to the agreement to sell dated 27.9.1995 ought not to have been decreed.

Learned Counsel for the Petitioners further states that application under Order 9 Rule 13 CPC is still pending, however, file thereof is missing from the Court record. Now apprehending that Respondent No. 1 shall get possession pursuant to the judgment and decree dated 11.10.2004, Petitioners have preferred objections u/s 47 CPC in the execution filed by Respondent No. 1 being legal heir of Nanak Chand which were dismissed by the impugned order.

I have heard learned Counsel for the Petitioners and perused the record.

In the opinion of this Court objections u/s 47 CPC is not remedy available to the Petitioners. Objections were rightly rejected. However, Petitioners have remedy under Order 9 Rule 13 CPC to get the ex-parte decree set aside against them. Since file under Order 9 Rule 13 CPC is reported to be missing as per learned Counsel for the Petitioners, hence, Petitioners have remedy to move an application before the Court concerned to have the file reconstructed.

Present petition is disposed of with the direction that Petitioners shall move an application before the Court concerned for reconstruction of file under Order 9 Rule 13 CPC It appears that agreement to sell dated 3.2.1995 in favour of the Petitioners is prior to the agreement to sell dated 27.9.1995 in favaour of Nanak Chand and sale deed was also executed by Kehar Singh in favour of the Petitioners on 18.1.1996 pursuant to the agreement to sell dated 3.2.1995, hence, in the opinion of this Court, operation of the judgment and decree dated 11.10.2004 must remain stayed till the disposal of application under Order 9 Rule 13 Code of Civil Procedure.

Trial Court is expected to reconstruct the file at the earliest and to decide the application under Order 9 Rule 13 CPC as early as possible preferably in any case within 6 months from the date certified copy of this order is placed before the trial Court. Meanwhile, judgment and decree dated 11.10.2004 shall remain stayed.

Copy of this order be forwarded to learned District Judge, Palwal to personally look into the matter and enquire the case and reason as to why file of Order 9 Rule 13 CPC went missing.