Ram Lal vs Mastu And Ors

@JUDGMENT-JUDGMENT

Sanjay K. Agrawal, J

Proceedings of this matter have been taken up through video conferencing.

Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellant/plaintiff.

By the impugned judgment and decree, the first Appellate Court has dismissed the First Appeal preferred by appellant/plaintiff affirming the

judgment and decree of the Trial Court dismissing the suit and refusing to set aside the ex parte decree passed in Civil Suit No.1-A of 1993 (Ramlal

vs. Mastu and others).

Mr. A.N. Bhakta, learned counsel for the appellant/ plaintiff would submit that the ex parte decree passed in Civil Suit No. 1-A of 1993 was

without jurisdiction and without authority of law as the suit property was the joint family property of plaintiff and defendant No. 2 Laxman, therefore,

defendant No. 2 alone was not entitled to enter into the agreement to sale dated 12.05.1988 to alienate the suit property without impleading him as

party defendant in that suit. He would also submit that plaintiff herein preferred First Appeal against that judgment and decree, being Civil Appeal No.

25-A/1996, but that too was dismissed. As such, the appeal involves substantial question of law for determination and it be admitted for hearing by

formulating substantial question of law.

It appears from the record that with respect to suit property defendant No. 2 Laxman entered into agreement to sale with defendant no. 1

Masturam, which led to filing of the suit by Masturam for specific performance of contract against Laxman on the basis of the said agreement dated

12.05.1988 and ultimately, ex parte decree for specific performance of contract was passed in Civil Suit No. 1-A/1993 in his favour.

The plaintiff/appellant herein very well questioned the judgment and decree passed in Civil Suit No. 1-A/1993 before the First Appellate Court

under section 96 of the CPC in Civil Appeal no. 25-A of 1996. But, that was dismissed by on 07.01.1997 affirming the ex parte decree passed by the

Trial Court. Thereafter, the present appellant/plaintiff instituted a civil suit for declaring the agreement dated 12.05.1988 as null and void and also

sought the relief of confirmation of his possession, which was dismissed by the Trial Court on 11.05.2006 and on appeal being preferred by the

appellant/plaintiff, the First Appellate Court dismissed the appeal by the impugned judgment and decree.

A defendant against whom an ex parte decree has been passed under Rule 6 for default of appearance at the stage of hearing has following

courses open to him as remedies:-

i) He may appeal from the ex parte decree under Section 96 of Code of Civil Procedure, 1908.

ii) He may apply for review of judgment under order 47 Rule 1 or file a suit for setting aside the ex parte decree on the ground of fraud.

iii) He may apply under Rule 13 for an order to set aside the ex parte decree, provided the application is made, within 30 days from the date of the

decree, or where the summons were not duly served, when he had knowledge of the decree, the relevant provision now would be Article 123 of the

Limitation Act, 1963.

The Supreme Court in the matter of Bhanu Kumar Jain vs. Archana Kumar and another (2005) 1 SCC 787Â has indicated the remedies open to

the party against whom ex parte decree has been passed and held as under:-

 ""26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the exparte decree on the

ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13

of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte

decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the

Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the

converse is also true.

Similarly, the principle of law laid down in Bhanu Kumar Jain (Supra) has been followed with approval of the Supreme Court in the matter of

Rabindra Singh vs. Financial Commissioner Cooperation Punjab and others. (2008) 7 SCC 663.

Reverting to the facts of the case after noticing the principle of law laid down by their Lordships of the Supreme Court in the above-stated

judgments, it is quite vivid that the plaintiff herein (who was not a party to said civil suit) questioned the ex parte decree passed in Civil Suit No. 1-

A/1993 dated 21.07.1994 by way of First Appeal under Section 96 of the CPC, which was ultimately dismissed on 07.01.1997, and as such, the decree

of the trial Court has merged into the appellate decree in Civil Appeal No. 25-A/1996 passed by the First Appellate Court and the only operative

decree which was available was the Appellate decree dated 07.01.1997 which plaintiff did not call in question in the civil suit and only filed the suit for

declaring the agreement to sale dated 12.05.1988 as null and void. Once the decree of the Trial Court has merged into the Appellate decree by

principle of merger, plaintiff ought to have questioned the Appellate decree by seeking declaration, if any. But the plaintiff did not seek any declaration

in the said suit filed by him.

The plaintiff herein questioned the ex parte decree by way of appeal and the appeal having been dismissed on merits on 07.01.1997 and in view of

the aforesaid judgment rendered by the Supreme Court in the matter of Bhanu Kumar (supra) regular civil suit would lie to set aside the ex parte

decree on the ground of fraud. Where the new trial is sought to set aside the ex parte decree on the ground of fraud, the fraud must be alleged and

pleaded in the suit to set aside the ex parte decree. A careful perusal of the plaint would show that the plaintiff only assailed the agreement dated

12.05.1988 executed by defendant no. 2 in favour of Defendant no. 1 which has already been culminated into the ex parte decree dated 21.07.1994

passed in Civil Suit No. 1-A/1993 and the plaintiff did not even bother to lay any challenge either to the ex parte decree passed in Civil Suit No. 1-

A/1993 dated 21.07.1994 or the Appellate decree passed in Civil Appeal No. 25- A/1996 dated 07.01.1997 and allowed both the decree to become

final as the plaintiff's suit was liable to be dismissed for laying no challenge to the ex parte decree passed in the Civil Suit or the Appellate decree

which was passed at his instance affirming the ex parte decree, as such, in absence of challenge to that decree, both the courts below have rightly

dismissed the suit filed by the plaintiff. I do not find any illegality or perversity in the impugned judgment and decree warranting any interference in

Appellate jurisdiction under Section 100 of Code of Civil Procedure,1908.

Accordingly, the second appeal deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).