Ramesh vs Harbans Nagpal & Ors

3. The appellant under an Agreement of sale dated 27.5.1998 had purchased the property described in the document as under:

4. On or about 16.8.2001 the Respondent No.1 herein filed Civil Suit No.229 of 2001 in the Court of Senior Civil Judge, Delhi against the Defendant No.1 i.e. his wife and Defendant Nos. 3 to 5 who are relatives of the Defendant No. 1. The present appellant was joined as Defendant No.2. It was submitted in the plaint as under:

5. The Appellant was initially proceeded ex-parte vide order dt.20.12.2001 but that order was set aside on 1.8.2002 and the appellant filed her written statement and reply to the application for interim relief. No replication was filed. The suit was dismissed for default on 17.9.2004. Respondent No.1-Plaintiff preferred application for restoration, which was adjourned from time to time for lack of effective service. The suit was later restored on 19.4.2006 when Defendant Nos.1 and 5 appeared in person and submitted that they had compromised the matter and had no objection to the suit being restored. Upon such restoration, the suit was decreed vide judgment dt.7.2.2007 in the absence of the appellant. It was observed by the trial court as under:

8. The aforesaid application was dismissed by the trial court vide its order dated 15.10.2007 holding that there was no clerical error or accidental omission in the decree and that taking on record the amended site plan at that stage would amount to going behind the decree and modifying the terms of the original decree. In the meantime the appellant- defendant No.2 got the knowledge of ex parte decree dated 07.02.2007 and preferred an application under Order IX Rule 13 CPC for setting aside the same, which application is still pending consideration.

10. We have gone through the record and considered the rival submissions. In our view, no dimensions were given in the plaint nor did the plaint refer to any sketch. The judgment and decree also did not refer to any dimensions of the chhajja in question nor did it incorporate or refer to any sketch from which dimensions could be gathered. In the premises the view taken by the trial court was absolutely correct, in that any exercise would amount to going behind the decree. The application preferred under Section 151 CPC was also vague and lacking in any particulars. The High Court was, therefore, not justified in passing the instant directions. We, therefore, allow the appeal and set aside both the orders under appeal. It is open to Respondent NO.1-plaitniff to take such steps as are open to him in law. We may also observe that the application for setting aside the ex parte decree preferred by the appellant shall be considered on its own merits.

11. The appeals, thus, stand allowed with no order as to costs.

.........................J. (Dipak Misra) ..........................J. (Uday Umesh Lalit) New Delhi, March 23, 2015 ITEM NO.1E COURT NO.12 SECTION XIV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 31194-31195/2010 (Arising out of impugned final judgment and order dated 14/01/2010 in CMM No. 846/2008,02/06/2010 in RP No. 58/2010,02/06/2010 in CMM No. 846/2008,14/01/2010 in CMM No. 846/2008,02/06/2010 in RP No. 58/2010,02/06/2010 in CMM No. 846/2008 passed by the High Court Of Delhi At New Delhi) RAMESH Petitioner(s) VERSUS HARBANS NAGPAL & ORS. Respondent(s) Date : 23/03/2015 These petitions were called on for pronouncement of judgment today.

Hon'ble Mr. Justice Uday Umesh Lalit pronounced the non-reportable judgment of the Bench comprising Hon'ble Mr. Justice Dipak Misra and His Lordship.

Leave granted.

The appeals are allowed in terms of the signed non-reportable judgment.

(Signed non-reportable judgment is placed on the file)