PARKASH KAUR Vs. SATTA

JUDGEMENT

(1.) THIS is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') against concurrent findings of facts recorded by both the Courts below repelling their challenge to the ex parte judgment and decree dated 26.5.1981 passed against them. The legal question which has been considered by both the Courts below is whether the ex parte decree could be challenged by way of filing a separate suit or the only remedy of the plaintiff-appellants was either to file an appeal under Section 96 or an application under Order IX, Rule 13 of the Code. The afore-mentioned question has been answered by both the Court below against the plaintiff- appellants holding that a suit was not competent to challenge an ex parte decree particularly when the plaintiff-appellants were party to the earlier ex parte decree.

(2.) BRIEF facts necessary for the disposal of the instant appeal are that the plaintiff-appellant filed a civil suit No. 534-I dated 29.1.1990/9.3.1999. The principal challenge in the civil suit was that the defendant-respondents 1 to 4 (represented by their L.Rs) obtained an ex parte judgment and decree from the Civil Judge on 26.5.1981 without apprising the civil Court the true and correct facts. According to the plaintiff-appellants, defendant-respondents had obtained a decree by mis-representing the order dated 12.4.1967 passed by the Collector in favour of the defendant-appellants on the application made by the defendant-respondents 1 to 4 for purchase of land in their capacity as tenants. It was asserted that infact the order of the Collector was set aside by the Financial Commissioner on 10.8.1970 and the case has been remanded back. It was further claimed that on remand the application filed by defendant-respondents 1 to 4 was infact dismissed on 3.9.1980 which had attained finality. The stand taken by the defendant-respondents was that beside the fact that the suit was time barred it was claimed that the suit was not maintainable. It was further asserted that Dulla Ram and Gopi Ram who were sons of Sodagar Ram were owners of the suit land and defendant respondents 1 to 4 were the tenants under the big landowner namely Mathura Dass who had sold the suit land to Dulla Ram and Gopi Ram. It was further claimed that after remand by the Financial Commissioner, the application of defendant-respondents 1 to 4 for purchase of land in their capacity as tenants was never dismissed and a total mis-representation of facts have been made by the plaintiff- appellants. Elaborating their stand further, defendant-respondents claimed that mutation No. 1057 was sanctioned in their favour on 17.8.1989 in the presence of the plaintiff-appellants (who are now represented by their legal heirs) which was based on the civil Court decree dated 26.5.1981. On the crucial issue as to whether the judgment and decree dated 26.5.1981 was null and void both the Courts have held that the remedy of the plaintiff-appellant was either to challenge the judgment and decree before the appellate Court by filing an appeal under Section 96 of the Code or to file an application for setting aside the order of ex parte. It is appropriate to mention that the judgment and decree dated 26.5.1981 was passed in Civil Suit No. 236-MS instituted on 17.9.1979 and plaintiff-appellants Hans Raj and Khushi Ram (now represented by their legal heirs) were arrayed as party defendants. They were validly served but preferred not to appear. Hence they were proceeded ex parte. The learned lower Appellate Court upheld the contention of the defendant-respondents 1 to 4 holding that no suit was maintainable for challenging ex parte decree by observing as under :

(3.) IT is also appropriate to mention that the lower appellate Court took into consideration the sanctioning of mutation on the basis of judgment and decree dated 26.5.1981. A reference has been made to the order dated 17.3.1989 that mutation No. 1057 was sanctioned in favour of the defendant-respondents in the presence of the plaintiff-appellants Hans Ram and Khushi Ram (who are now represented by their legal heirs). Thereafter, the plaintiff-appellants filed an appeal which was dismissed by the Collector, Fazilka on 21.1.19991 (Ex. D- 1). It has also been found by both the Court below that defendant-respondents 1 to 4 have been continuing in possession of the suit land.