SAO No.41 of 2007 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** SAO No.41 of 2007 DATE OF DECISION: 12.02.2009 **** Khillu . . . . Appellant VS. Chhaju Ram and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Rajiv Sharma, Advocate for the appellant. Mr.Adarsh Jain, Advocate for the respondents. **** RAKESH KUMAR JAIN J.(ORAL) CM No.23038-CII-2007 Allowed as prayed for. CM No.23039-CII-2007 Allowed as prayed for. CM No.23040-CII-2007 Dismissed as not pressed. MAIN CASE Challenge in this appeal is against the order passed by Additional District Judge, Faridabad dated 21.11.2007, whereby it has been held that the application for setting aside ex pare decree passed by the Appellate Court, is not maintainable. SAO No.41 of 2007 - 2 - In brief, the facts of the case are that the suit for possession filed by the plaintiff (respondent herein) was dismissed ex parte on 23.10.2003. The plaintiff then filed Appeal No.49 dated 28.11.2003, which was allowed ex parte by the First Appellate Court on 2.4.2004. The defendant/appellant filed an application before the Appellate Court for setting aside the ex parte judgment and decree dated 2.4.2004 but the said application has been dismissed vide the impugned order, on the ground that the same is not maintainable. After hearing learned counsel for the parties, I am of the view that the impugned order is palpably erroneous because application moved by the defendant in Appellate Court for setting aside the ex parte decree passed by the Appellate Court is maintainable before the Appellate Court itself and not before the trial Court because the decree has been passed by the lower Appellate Court and the trial Court had simply dismissed the suit of the plaintiff. Therefore, defendant has rightly filed application before the First Appellate Court for setting aside the ex parte decree. In view of the above discussion, the present appeal is allowed. The matter is remanded back to the First Appellate Court to entertain the application for setting aside the ex parte decree passed by the Appellate Court and decide the same in accordance with law. The parties shall appear before the First Appellate Court at Faridabad on 25.3.2009. (RAKESH KUMAR JAIN) February 12, 2009 JUDGE vivek