Shivram Meena v Lalaram
Rajasthan High Court
JAIPUR BENCH
17 October 2013
S.B Civil Misc. Appeal No. 4289/2011
The Order of the Court was as follows :
1. The present appeal has been filed under Order XLIII Rule 1 of the Civil Procedure Code (for short as ‘CPC’) challenging the order dated 21.7.2011 passed by Additional District & Sessions Judge, Laxmangarh (Alwar) (hereinafter referred to as the ‘court below’) in case no. 90/2011, whereby the court below has dismissed the application of the appellant-original defendant under Order IX Rule 13 CPC read with Sec.5 of the Limitation Act.
2. The short facts giving rise to the present appeal are that the respondent-original plaintiff had filed the suit being No.34/2008 for specific performance of the alleged agreement dated 30.10.2002 against late Sh.Manphool Meena, father of the appellant and two others, which was decreed exparte against the defendants of the said suit as per the judgment and decree dated 21.7.2009. According to the appellant, his father Manphool Meena expired on 9.5.2010 and he came to know about the exparte decree for the first time on 16.7.2010 when one person named Mukesh Jain told him about the said decree. The appellant thereafter filed the application under Order IX Rule 13 CPC read with Sec.5 of the Limitation Act on 12.8.2010 for setting aside the said exparte decree. The said application of the appellant was rejected by the court below vide impugned order.
3. It has been sought to be submitted by the learned counsel for the appellant that the father of the appellant was never served with the summons in the suit, and after the death of his father, the appellant came to know about the exparte decree from third person. According to him, the appellant was also not aware about the execution proceedings filed by the respondent and hence there was no delay in filing the application under Order IX Rule 13 CPC.
4. However, the learned counsel for the respondent has submitted that the appellant was aware about the exparte decree and had also engaged a lawyer in the execution proceedings filed before the court below, and that the said lawyer sought time to make compromise. According to him, summons were duly served on the father of the appellant in the suit, but since he did not choose to appear, the exparte decree was rightly passed by the court below.
5. Having regard to the facts & circumstances of the case, and to the record of the suit, as well as of the application filed under Order IX Rule 13 CPC, it appears that the father of the appellant late Manphool Meena was initially sought to be served by issuing summons in the suit, however the same having not returned, the court below had issued the summons to be served by the registered post. The said summons also having not returned, a presumption was drawn about the service of summons and the court below then had proceeded exparte against the original defendant late Manphool Meena, and also passed the exparte decree against the father of the appellant.
6. Now so far as the knowledge of the appellant about the said exparte decree is concerned, it appears that the Advocate namely Ramesh Gurjar had appeared on behalf of the appellant in the execution proceedings filed by the respondent, however he had not filed the Vakalatnama duly signed by the appellant. Ofcourse, it was not disputed that same Advocate was appearing for the appellant in some other criminal proceedings pending against the appellant. In any case, since the said advocate was not duly authorized to appear for the appellant in the execution proceedings, it is difficult to hold that the appellant was aware about the exparte decree passed against the father of the appellant, and also the pendency of the execution proceedings.
Thus having regard to the totality of the circumstances, the court is of the opinion that the impugned order and the exparte decree passed by the court below deserve to be set aside, and the suit deserves to be decided on merits after affording the opportunity to both the parties to lead the evidence in the suit.
7. In that view of the matter, the impugned order dated 21.7.2009 passed by the court below in case no. 90/2011, and the exparte decree dated 21.7.2009 passed in civil suit no. 34/2008 are set aside, subject to the condition that the appellant shall pay cost of Rs.5000/- to the respondent, and further deposit Rs.1,00,000/- before the court below within a period of four weeks from today. On such deposit being made, the respondent shall be at liberty to withdraw the same on his furnishing the undertaking on oath and solvent security to the effect that said amount shall be refunded to the appellant with interest @ 9 % per annum, in case the appellant succeeds in the suit. It is further clarified that if the appellant does not deposit the said amount as directed above, the respondent shall be at liberty to execute the decree dated 21.7.2009 passed in civil suit no. 34/2008 by the court below.
9. With the aforesaid directions, the appeal is allowed.
Appeal allowed
