AMAR SINGH AND ANOTHER Vs. VARINDER KUMAR GUPTA

JUDGEMENT

(1.) The revision petition is against the dismissal of an application for setting aside the ex-parte decree before the Trial Court.

(2.) The suit by the respondent was for specific performance of an agreement said to have been executed by the defendant on 25.06.2002. Admittedly, after the institution of the suit, the sole defendant had died and this was brought to the notice of the Court. The statement had already been filed by the defendant denying the agreement, but, the plaintiff instead of taking steps to implead the LRs, allowed the benefit of amendment under Punjab Amendment Order 22 Rule 4 that made possible for continuing the suit as if the deceased defendant was alive.

(3.) After the decree was passed on 18.01.2008, the son filed an application on 02.06.2008 contending that he came to know that an ex-parte decree had been passed at time when he was at Bank for some repayment of loan and when the plaintiff was giving out that he had obtained a decree. The application for setting aside the ex-parte decree brought at the instance of the son was contested on the ground that there was no necessity to implead the legal representatives and the statutory provision of Order 22 Rule 4 empowered the Court to grant a decree even without impleading the legal representatives. It was also contended that the plea of the defendant son that he came to know about the ex-parte decree on 13.08.2005 cannot be true because on that day the plaintiff was in a foreign country. It was also the contention that the agreement which was sued up on had been contested by the 2nd petitioner-husband and, therefore, he must have known about the agreement in the suit. These objections prevailed on the Presiding Officer to dismiss the petition. The Appellate court confirmed the same.