GUDDI DEVI Vs. AMARNATH

JUDGEMENT

(1.) Leave granted.

(2.) A suit was filed in 1999 by the respondent against the appellant for evicting the appellant. The property admittedly belonged to the appellant's father. The claim of the respondent-plaintiff was that the property had been bequeathed to him by the appellant's father under a will. The suit was decreed ex parte on 25.05.2001. The decree was put to execution on 6.07.2001. It is claimed that the bailiff went to take possession of the suit property by evicting the appellant. According to the appellant, he came to know about the ex parte decree for the first time on that date. There is some dispute as to the date on which the possession was sought to be taken. Be that as it may, on the allegation that the appellant got knowledge of the ex parte decree for the first time on that date the appellant moved an application under Or. 9 R. 13 for recalling the ex parte decree dated 25.05.2001. The trial court passed an interim order on 19.12.2003 in which a prima facie conclusion was arrived that there had been no service effected on the defendant and that the defendant was not aware of the suit. It was held that therefore the decree needed to be stayed pending disposal of the application under Or. 9 R. 13 of the Code of Civil Procedure, 1908. A date was fixed for the filing of objections.

(3.) Being aggrieved by this interim order the respondent preferred a civil revision petition. It was argued by the respondent before the revisional court that the appellant had filed an appeal against the ex parte decree and that the same had been dismissed on 25.04.2003 for non-prosecution and therefore, the application under Or. 9 R. 13 of the Code of Civil Procedure, 1908 was not maintainable. The appellant, however, stated before the revisional court that they had not filed any appeal but that the respondent had done so by playing fraud on the court in order to defeat the appellant's right under Or. 9 R. 13 Code of Civil Procedure. The revisional court held that this was an issue which should be raised and decided by the trial court before which the application under Or. 9 R. 13 Code of Civil Procedure was pending.