Savitri devi and Another vs 6th A.D.J. and Others

S.U. Khan, J.—Heard learned Counsel for the parties.

Respondent No. 3, Urmila Devi instituted O.S. No. 354 of 1986 against Tejpal (husband of original Respondent No. 5), Defendant No. 1, Mst. Dhanwati wife of Jai Singh, Defendant No. 2, (since deceased and survived by Smt. Rajbala, Respondent No. 4), Savitri Devi, Defendant No. 3 and Smt. Kamla Devi Defendant No. 4. Defendant Nos. 3 and 4 are Petitioners in this writ petition. The suit was for specific performance of an alleged agreement for sale executed by Tejpal dated 11.11.1985 registered on 10.12.1985. The property in dispute was agricultural land comprised in Khasra No. 87 M area 1 bigha 9 biswa 3 biswancies situate in village Umarpur, Pargana Dhampur, District Bijnor. In the agreement the sale consideration was shown to be Rs. 15,000/-out of which an amount Rs. 14,500/-was paid as earnest money at the time of execution of agreement for sale and it was stipulated that sale deed would be executed within a year by Tejpal after receiving balance amount of Rs. 500/-. It was further alleged in the plaint that Tejpal turned dishonest and within a year from the date of execution of the agreement, he executed sale deed of the property in dispute in favour of his daughter who was Defendant No. 2 in the suit. It was further alleged that thereafter Defendant No. 2 executed the sale deed in favour of Defendants No. 3 and 4, Petitioners.

The suit was decreed ex parte on 12.05.1988 by Additional Civil Judge, Bijnor, copy of the said judgment is Annexure 1 to the writ petition in which it is mentioned that inspite of sufficient service no one appeared on behalf of Defendants and Plaintiff had proved her case by filing affidavit. Service was affected through publication in the news paper Rashtriya Vedna. Petitioners filed restoration application under Order IX Rule 13 CPC on 30.03.1989 which was registered as case No. 17 of 1989. The said case was dismissed in default on 19.05.1992. Accordingly, another restoration application was filed on 4.10.1993 along with delay condonation application which was registered as case No. 43 of 1993. 1st Additional Civil Judge Bijnor through order dated 21.02.1995 dismissed the second restoration application (Misc. case No. 43 of 1993) copy of the said order is Annexure 3 to the writ petition. Against the said order Petitioners filed Civil Revision No. 26 of 1995 which was allowed on 12.11.1997, order dated 21.2.1995 was set aside, Petitioners second restoration application registered as Misc. case No. 43 of 1993 was allowed and order dated 19.05.1992 dismissing Petitioners'' first restoration application (Misc. case No. 17 of 1989) in default was set aside and matter was remanded to the trial court to decide Petitioners first restoration application (Misc case No. 17 of 1989).

Thereafter, trial court/1st Additional Civil Judge Sr. Division, Bijnor, dismissed the first restoration application (Misc. case No. 17 of 1989) through detailed order dated 09.10.1989, true copy of the said order is Annexure 5 to the writ petition. Against the said order Petitioners filed Civil Misc. appeal No. 167 of 1998 which was dismissed on 4.09.1999 by 6th A.D.J. Bijnor, hence this writ petition.

In this writ petition on 11.11.1999 an order was passed directing the parties to maintain status quo. In view of the said interim order sale deed was not executed by the executing court pursuant to the ex parte judgment and decree dated 12.05.1988. However, writ petition was dismissed in default on 24.4.2009 and was restored on 23.12.2010. However, in between 24.4.2009 and 23.12.2010 sale deed was executed by the executing court on 25.10.2010. Thereafter, Petitioners were put in possession through Court Amin on 21.12.2010 according to para 7 of supplementary counter affidavit sworn on 13.2.2011. This fact (of possession) was not denied by learned Counsel for the Petitioner as noted in the order sheet dated 21.02.2011. Pursuant to the said order certified copy of restoration application was also filed by the Petitioners. There is absolutely no difference in the certified copy and the copy of the restoration application dated 30.03.1989 filed along with supplementary affidavit dated 09.01.2011 by the Petitioners.

Respondent No. 5 in the writ petition, Smt Shyamo Devi wife of late Tejpal died during pendency of the writ petition. Petitioners filed an application dated 17.03.2011 for deletion of her name. The application was allowed on 4.4.2011 with the rider that the effect of deletion of her name would be considered at the time of final decision of the writ petition. In my opinion as Rajbala the legal representative of Mst. Dhanwati who was daughter of Shyamo Devi is already on record hence the deletion of name of Respondent No. 5 will not make much difference on the writ petition even if the couple had some other issue also. Smt. Rajbala Respondent No. 4 will represent the entire estate in that contingency.

Limitation to file restoration application is 30 days from the date of knowledge of decree in case summons of the suit is not served upon the Defendant. The restoration application was filed after about ten and half months of the ex parte decree.

In the restoration application it was stated that on 30.3.1989 applicants Petitioners got the file inspected and came to know for the first time about the ex parte decree dated 12.05.1988.

The Plaintiff Respondent No. 3 contended that Petitioners had full knowledge of the suit and decree and they had also been served in execution.

After ex parte decree Plaintiff had filed execution application in the form of Execution Case No. 13 of 1988. In para 4 of the restoration application dated 30.03.1989 it was stated that on receipt of summon of the execution case, applicants got inspected the file on 30.03.1989 and only then they came to know about the ex parte decree dated 12.05.1988 and prior to that they had no knowledge of the decree. It was again stated at the end of that paragraph that for the first time on 30.03.1989 applicants came to know about the suit.

The Plaintiff Respondent No. 3 in the objection filed in the restoration case specifically pleaded that before court of S.D.O. Dhampur appeal No. 15 of 1988 Urmila v. Smt. Savitri and Smt. Kamla Devi (Petitioners) was pending u/s 210 of U.P.L.R. Act in which Plaintiff had filed copy of ex parte judgment on 23.08.1988. The said appeal was afterwards decided after hearing both the parties.

The trial court in its judgment dated 09.10.1998 through which restoration application was dismissed further held that from the perusal of file of the execution case it was clear that notice of execution was served upon Savitri Devi (Petitioner No. 1) on 06.01.1989 and Smt. Kamla Devi was served the notice of the execution on 29.09.1988. The trial court therefore concluded that as both the applicants Petitioners had been served more than 30 days before filing of the restoration application on 30.03.1989, hence there was absolutely no explanation of the delay.

I fully agree with the view taken by the courts below. Both the Petitioners applicants in their restoration application clearly admitted that they came to know about ex parte decree through service of notice of execution case. The notice was served on Petitioner No. 1 about three months before filing of the restoration application and upon Petitioner No. 2 about 6 months there from.

Accordingly, there is no merit in the writ petition hence it is dismissed.