MASTAN SINGH Vs. TARLOCHANPREET SINGH

JUDGEMENT

(1.) THE revision petition is against the order dismissing an application for setting aside an ex -parte decree that was passed on 21.1.2009. The appeal preferred against that order was also dismissed.

(2.) THE suit was for specific performance of the sale instituted in the year 2006. A per the terms of the agreement, earnest amount of Rs. 15 lacs was said to have been paid through cheque and when, according to the plaintiff, the balance was not received and the defendant was not willing to abide by the terms, the suit had to be instituted. The defendant had engaged a counsel and filed a statement but he did not come at the trial when the counsel appearing for him had informed the court that he had no instruction from the party and the court set him ex -parte on 23.5.2008. The decree was, however, not passed immediately and the case was adjourned from time to time and the ex -parte decree was passed on 21.1.2009. The plaintiff/decree - holder had deposited the balance of sale consideration, secured the sale deed and applied for delivery of the property. Only at the execution stage, the defendant took notice of the proceedings and applied to the court on 24.10.2009 to set aside the ex -parte decree.

(3.) THE counsel appearing on behalf of the respondent points out that the defendant had been served in suit and represented through counsel. When the respondent did not show up in court and the court, therefore, set him ex -parte on 23.5.2008, the trial court did not proceed to grant a decree immediately but had kept the case pending for nearly 8 months before the decree was passed on 21.1.2009. If the defendant had been served through court, then an application to set aside ex -parte decree must be filed within 30 days from the date of the decree and the knowledge of the decree is irrelevant when he had been served through the court and he was represented through a counsel. There was not even an application filed to condone the delay in filing the application for setting aside ex -parte decree.