Case: Vijay Singh Vs. Shanti Devi &amp; Another

herein and set aside the ex parte decree on the ground that she had not been served properly in the suit and, therefore, she had a reasonable cause for not appearing on the date on which the suit was called up.16. In the present case, the result would be that the respondent No.1, Shanti Devi would be relegated to the position at which she was when she was proceeded against ex parte which would be the date on which the written statement was to be filed. There is no manner of doubt that the effect of setting aside an ex parte decree is to restore the parties to the position at which they were prior to the passing of the decree and relegate them to the position on which they were when the defendant was proceeded against ex parte. The parties are restored to the position existing prior to the date the order proceeding against the defendant ex parte was passed. No authoritative pronouncement of this Court has been placed before us in this regard. However, we may refer to the judgments passed by various High Courts in the case of Kumararu Narayanaru v. Padmanabha Kurup Gopala Kurup, AIR 1953 (TC) 426, Beerankoya Haji v. P.P. Mohammedkutty, AIR 1986 Ker 10 , Shah Bharat Kumar v. M/s. Motilal and Bharulal, AIR 1980 Guj 51 , Aziz Ahmed Patel v. I.A. Patel, AIR 1974 (A.P.) 1, Mst. Lakshmi Devi v. Roongta & Co., AIR 1962 (All.) 381 , Venkatasubbiah v. Lakshminarasimhan, 49 Mad.L.J. 273, which have taken this view.17. It would be pertinent to mention that the mere fact that the ex parte decree has been executed does not disentitle the defendant from applying under Order IX Rule 13, CPC to get the same set aside. Reference may be made to Sm. Sankaribala Dutta v. Sm. Asita Barani Dasi and others, AIR 1977 Calcutta 289 and Mst. Fatima Khatoon v. Swarup Singh, AIR 1984 Calcutta 257. Once the decree is set aside, restitution or restoration can be ordered.18. On behalf of the appellant it has been urged that in Shyam Sunders case (supra), this Court made no exception for ex-parte decrees while setting out the principles which have been quoted hereinabove and the ex parte decree should be treated to be the decree of the court of first instance. That was not an issue raised before the Constitution Bench. This Court was only concerned with the issue whether the amendment to the 1913 Act taking away the right of pre-emption vested in the co-sharer introduced after the decree was passed by the court of first instance and the effect thereof. The issue which is raised in this case was neither directly nor impliedly the subject matter of decision in Shyam Sundars case (supra).19. An ex parte decree is passed when the court believes that the defendant has been served but is not appearing in court despite service of summons. In the present case, the appellate court while setting aside the ex parte decree, has come to the conclusion that the defendant Shanti Devi (respondent no. 1 herein) was not served and, therefore, the court had wrongly proceeded against her ex parte. That finding has been upheld till this Court. In our view, the effect of this would be that the ex parte decree, on its being set aside, would cease to exist and become non-est. After the ex parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial court on merits should be treated as the decree of the first court. We may make it clear that we are not dealing with those cases where a case has been decided on merits and the decree is set aside by the appellate court on any other ground and the matter remanded to the trial court for decision afresh. We leave that question open.20. Here, we are dealing with a case where the defendant was proceeded against ex parte and that order has been set aside on the ground that she has not been served and, therefore, she has been relegated to the position existing on the date she was proceeded against ex-parte, i.e., 6th April, 1990. After the amendment was introduced on 17th May, 1995, there was no right existing in the plaintiff to file a suit for pre-emption. Since the decree on contest was passed on 27th November, 1999 the plaintiff had no existing right of pre-emption on that date and the suit was rightly dismissed. This decree is the only subsisting decree of the first court.21. Shri Amarendra Sharan, learned senior counsel appearing for the appellant urged that since possession of the property was taken as far back as 7th June, 1990, no restitution can be ordered at this belated stage and, therefore, there is no point in upholding the decree. On the other hand, Shri Shantwanu Singh, learned counsel appearing for the respondent No. 1 has urged that this Court should exercise its power under Article 142 of the Constitution of India and direct that the property be restored to the respondent No. 1, who has been litigating for many years.22. We cannot accept either of the two submissions. The limitation for restitution under the Limitation Act is 12 years. The ex parte decree was set aside on 28th August, 1998 and thereafter, the appellant has been litigating at various levels. If the appellant had obtained stay order(s) during this period, obviously the period for which the stay was granted, would have to be excluded while calculating the period of limitation. This is not the job of this Court. It is for the executing court to decide whether the restitution petition, if any filed, is within the limitation or not. It is only the court which passed the original decree, which can order restitution. Restitution cannot be granted by the Supreme Court, as held in the case of State Bank of Saurashtra v. Chitranjan Rangnath, (1980) 4 SCC 516.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. In view of the decision of the Constitution Bench, it is not necessary to refer to various other judgments cited before us. A perusal of the principles laid down by the Constitution Bench clearly indicates that theshould possess the right toon three dates:(i) the date of sale;(ii) the date of filing of the suit; and(iii) the date of passing of the decree by the court of first instance only.As far as the first two conditions are concerned, there is no dispute that the appellant possessed the right ofon the date of sale as also on the date of filing of the suit since he was ain the land in question. It is also not disputed that on 10th April, 1990 when the ex parte decree was passed in favour of the appellant he had a valid legal right of12. We are only concerned with clause (a), which provides that if summons are duly served and the defendant does not put in appearance, the court may make an order that the suit would be heard ex parte. In this case, this was the procedure followed and an ex parte decree was passed. There is no manner of doubt that an ex parte decree is also a valid decree. It has the same force as a decree which is passed on contest. As long as the ex parte decree is not recalled or set aside, it is legal and binding upon the parties.The aforesaid provision lays down the procedure for setting aside a decree passed ex parte. The court can set aside an ex parte decree only on two groundsfirstly, that the summons was not duly served; and secondly, that the defendant was prevented by sufficient cause from appearing when the suit was called out. Once an ex parte decree is set aside, it basically means that the parties are relegated to the same position on which they stood before the passing of thedecree.15. In the present case, the stand of the respondent No. 1 is that she was never served in the suit and she came to know about the proceedings only on the date when the decree was executed and the possession of the land was taken from her. On the same day itself she filed an application for setting aside the ex parte decree. This application was dismissed by the trial court. The lower appellate court allowed the appeal filed by the respondent No. 1 herein and set aside the ex parte decree on the ground that she had not been served properly in the suit and, therefore, she had a reasonable cause for not appearing on the date on which the suit was called up.16. In the present case, the result would be that the respondent No.1, Shanti Devi would be relegated to the position at which she was when she was proceeded against ex parte which would be the date on which the written statement was to be filed. There is no manner of doubt that the effect of setting aside an ex parte decree is to restore the parties to the position at which they were prior to the passing of the decree and relegate them to the position on which they were when the defendant was proceeded against ex parte. The parties are restored to the position existing prior to the date the order proceeding against the defendant ex parte was passed. No authoritative pronouncement of this Court has been placed before us in this regard.It would be pertinent to mention that the mere fact that the ex parte decree has been executed does not disentitle the defendant from applying under Order IX Rule 13, CPC to get the same set aside. Reference may be made to Sm. Sankaribala Dutta v. Sm. Asita Barani Dasi and others, AIR 1977 Calcutta 289 and Mst. Fatima Khatoon v. Swarup Singh, AIR 1984 Calcutta 257. Once the decree is set aside, restitution or restoration can be ordered.An ex parte decree is passed when the court believes that the defendant has been served but is not appearing in court despite service of summons. In the present case, the appellate court while setting aside the ex parte decree, has come to the conclusion that the defendant Shanti Devi (respondent no. 1 herein) was not served and, therefore, the court had wrongly proceeded against her ex parte. That finding has been upheld till this Court. In our view, the effect of this would be that the ex parte decree, on its being set aside, would cease to exist and becomeAfter the ex parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial court on merits should be treated as the decree of the first court. We may make it clear that we are not dealing with those cases where a case has been decided on merits and the decree is set aside by the appellate court on any other ground and the matter remanded to the trial court for decision afresh. We leave that question open.20. Here, we are dealing with a case where the defendant was proceeded against ex parte and that order has been set aside on the ground that she has not been served and, therefore, she has been relegated to the position existing on the date she was proceeded againsti.e., 6th April, 1990. After the amendment was introduced on 17th May, 1995, there was no right existing in the plaintiff to file a suit forSince the decree on contest was passed on 27th November, 1999 the plaintiff had no existing right ofon that date and the suit was rightly dismissed. This decree is the only subsisting decree of the first court.We cannot accept either of the two submissions. The limitation for restitution under the Limitation Act is 12 years. The ex parte decree was set aside on 28th August, 1998 and thereafter, the appellant has been litigating at various levels. If the appellant had obtained stay order(s) during this period, obviously the period for which the stay was granted, would have to be excluded while calculating the period of limitation. This is not the job of this Court. It is for the executing court to decide whether the restitution petition, if any filed, is within the limitation or not. It is only the court which passed the original decree, which can order restitution. Restitution cannot be granted by the Supreme Court, as held in the case of State Bank of Saurashtra v. Chitranjan Rangnath, (1980) 4 SCC 516.