PARKASH KAUR Vs. JASWANT SINGH

JUDGEMENT

(1.) This petition has arisen out of the order dated 30.01.2009 (Annexure P-16) passed by the District Judge, Fatehgarh Sahib, accepting the appeal preferred by the appellants-respondents (hereinafter referred as 'the respondents') against the order dated 23.12.2005 passed by the Additional Civil Judge (Senior Division), Amloh, declining the application of the respondents for restoration of the application under order 9 Rule 13 CPC. The factual background of the case is that Parkash Kaur petitioner (hereinafter referred as 'the petitioner') had filed a Civil Suit No. 123 dated 20.03.1997 for possession by way of specific performance of the agreement to sell and permanent injunction against Ranjit Singh predecessor-in-interest of the respondents, which was decreed ex parte on 06.12.1997. Thereafter, the petitioner had filed an execution petition, whereupon defendant No. 1-Ranjit Singh filed an application for setting aside the aforesaid ex parte judgment and decree, which was contested by the petitioner and she filed reply to the same on 08.04.2000. Issues were also framed on the same day. On 19.10.2001, counsel for defendant No. 1-Ranjit Singh pleaded no instructions on his behalf. As such, the application for setting aside the ex parte decree was dismissed. Defendant No. 1-Ranjit Singh died on 20.11.2001. Thereafter, legal heirs of Ranjit Singh (respondents herein) filed an application for restoration of the application under Order 9 Rule 13 CPC. They also filed objections in the execution petition on 28.08.2002. In the execution proceedings, the Court had also ordered for execution of the sale deed through Local Commissioner. The application for restoration of the application under Order 9 Rule 13 CPC was also dismissed vide order dated 23.12.2005 (Annexure P-18). Appeal against the said order was allowed by the District Judge, Fatehgarh Sahib, on 30.01.2009, which has been challenged by way of present revision petition.

(2.) Learned counsel for the petitioner has raised a prime issue that when the suit or an application for restoration of application under Order 9 Rule 13 CPC is dismissed for non appearance of the party pursuing, then such order was not amenable to appeal and the said order is not covered under Order 43 Rule 1 (c) and 1 (d) of CPC. In this regard, he has placed reliance on a Full Bench judgment of the Hon'ble Madhya Pradesh High Court in a case Nathu Prasad v. Singhai Kapur Chand, 1976 AIR(MP) 136. Consequently, he urged that the order dated 19.10.2001 passed by the Additional Civil Judge (Senior Division), Amloh, dismissing the application for setting aside the ex parte decree, in default, was not appealable. As such, the order dated 30.01.2009 passed by the District Judge, Fatehgarh Sahib, is not sustainable in the eyes of law.

(3.) To the contrary, learned counsel for the respondents has urged that the order, against which the appeal was filed before the District Judge, Fatehgarh Sahib, was appealable and the order passed by the Appellate Court is quite valid and the revision is bound to fail.