GURBACHAN SINGH Vs. KIRPAL SINGH SANDHU

JUDGEMENT

(1.) Both the cases are connected and are being disposed of with common order. The revision is filed against the order setting aside an ex parte decree on condition that the judgment debtor pays Rs. 11 lakhs that was said to represent the advance received by the judgment debtor as well as the interest. The revision is filed stating that the condition imposed was very stiff and it did not amount to proper exercise of discretion. The decree holder himself is in revision. Though the order passed was an appealable order contending that he had been aware of the suit and he was actually served with summons in suit in 2004 itself, the Court was exercising a discretion to set aside the ex parte decree under extraordinary circumstance, for, it had observed that there was no justification for the absence of the defendant and, therefore, even the order passed by the court below setting aside the ex parte decree subject to any condition was not justified.

(2.) The respondent in Civil Revision No. 6470 of 2013 filed today by the decree holder waives notice and there has been no objection to the civil revision itself being disposed of along with the revision petition which he has himself filed. Considering the fact that in a suit for specific performance, the Court had only allowed for recovery of the amount with interest and considering also the fact that the Court had exercised his discretion to allow for ex parte decree to be set aside in order that an adjudication was rendered on merits, I find no reason to interfere with the order setting aside the ex parte decree. The decision taken was appropriate but imposition of entire amount of the decree makes meaningless an attempt to set aside the ex parte decree. An imposition of a term for deposit of 50% would have been sufficient and I had allowed for Rs. 5,50,000/- to be deposited before the Court at the time of ordering notice. It is reported to have been complied with. I had ordered previously that the amount could be held in deposit for a period of 2 years. I modify the said order and the plaintiff is entitled to recover the entire amount without any security for the present. There shall be a further direction that the defendant shall not alienate the property during the pendency of the suit. The order already passed stands and the civil revisions are disposed of to the above extent.