MOHAN LAL Vs. UDHA RAM

JUDGEMENT

(1.) This appeal is directed against order dated 8th September 1983 of Commercial Sub-Judge, Delhi, whereby he dismissed the application of the appellant-Shri Mohan Lal under Order IX Rule 13, Code of Civil Procedure (for short the Code) for setting aside an ex-parte decree which had been earlier passed against Shri Bul Chand, deceased father of the appellant, on 24th July 1974.

(2.) The facts giving rise to this appeal in brief are that the respondent Shri da Ram instituted a suit against Bul Chand, deceased, for specific performance of the contract and for recovery of Rs. 2,000.00 on 2nd March 1974. It was alleged that vide agreement to sell dated 26th June 1971 the deceased had agreed to sell house No. 11838, Streets 7 and 8 (Rehabilitation No. 91), Mata Rameshwari Nagar,Karol Bagh, New Delhi, for a total consideration of Rs. 21,000.00 . The plaintiff-respondent also made an application under Order XXXIX Rules I and 2 of the Code for an ad-interim injunction restraining the deceased from transferring the aforesaid property during the pendency of the suit. On 5th March 1974, notice of the said application was directed to be issued for 20th March 1974. Simultaneously with it an order for issue of summons in the suit for the aforesaid date was also made. On 20th March 1974 the deceased defendant was directed to be proceeded against ex-parte on the ground that he had been served personally but there was no appearance on his behalf. Eventually, as stated above, an ex-parte decree was passed against him on 24th July 1974.

(3.) Shri Bul Chand died on 29th August 1974. Thereafter an application was made by the respondent-Decree Holder on 29th September 1974 under Section 50 of the Code for enforcement of the decree and for substitution of his legal heirs. The appellant Mohan Lal, being one of the legal heirs of the deceased, was served with notice on 18th October 1974. He then moved an application on 28th October 1974 for setting aside the ex-parte decree, interalia, contending that he came to know of the suit having been filed against his deceased father on 18th October 1974 when the aforesaid notice was served upon him and that his lawyer then made inquiries from the court concerned and came to know of the ex-parte decree having been passed against his deceased father who had expired on 29th August 1974 after prolonged illness. He further contended that the deceased was never aware of the institution of the aforesaid suit against him nor was he ever served by registered post or through a Process Server. He also asserted that the deceased was not residing at the address given by the respondent-Decree Holder in the suit, viz.. House No. 83, Block 'E,' J.J. Colony, Madipur, as he had been all along residing at house No. 11838, Sat Nagar, New Delhi (which was the house in dispute).