SHIV CHARAN Vs. LALA MITHAN LAL

JUDGEMENT

(1.) -This First Appeal from Order by the appellant is directed against an order rejecting the application for restoring the suit to its original number which was dismissed for non prosecution. The appellant is a proforma defendant in the suit for partition between the co-owners of the property. The appellant being a tenant in the accommodation in question was impleaded as defendant in the suit. The suit for partition proceeded and was decreed exparte. The exparte decree is dated 16-8-86. After the exparte decree of the suit, the appellant stated in an affidavit accompanied with the application under Order 9 Rule 13 CPC that he has no knowledge or information about the suit and for the first time on 21st October, 1986 he got the information about the exparte decree passed in the suit. Immediately, on 23rd October, 1986, the application for setting aside the exparte decree was moved. The learned trial court vide order dated 30-1-1987 rejected the application on the ground that the appellant was merely a tenant in the suit property, and he has no right and title in the property in question on the date of passing of the exparte decree The court below recorded a finding to the effect that no relief has been sought against the appellant. With these observations, the application for restoration and setting aside the exparte decree was rejected.

(2.) BEFORE this court, the counsel for the appellant have filed copy of the sale deed dated 6-1-88 by which the applicant claims to have purchased 1/8th share in the house ' in question from one Smt Pushpa Devi, who is a defendant in the suit itself. The counsel for the appellant urges that the court below committed a patent illegality in observing that the appellant has no right, title in the property in question and on this ground, the order itself is liable to be set aside. I don't agree. On the date of the order dated 30-1-87, the appellant had not purchased the property in question from Smt. Pushpa Devi, which is admittedly of a later date i.e. 6-1-88. Thus, the submission of the appellants' counsel is wholly erroneous. The court below has rightly rejected the application on the ground that the appellant has no right, title in the property on the date when the suit was decreed exparte It is for the parties actually litigating and contesting the suit for partition to get the exparte decree set aside, if they have not chosen to opt that remedy, it is not open for the appellant, who merely a tenant previously and after the exparte decree get the sale deed is not competent to seek for setting aside the exparte decree. However, in case the actual partition proceeding are pending and not yet finalised, it shall be open to the appellant to move the court below with an application under Order 22 Rule 10 CPC and establishing the rights/interests which according to the appellant accured in his favour. It is expected if the final orders in the suit or the proceedings have not finalised, the court below may take into account the sale deed in favour of the appellant and pass necessary orders to secure the interest of the appellant. However, it is observed that these observations are subject to objection by the other defendant and plaintiffs In the suit in the court below.