SOHAN LAL Vs. PUSA RAM

JUDGEMENT

(1.) This miscellaneous appeal under Section 104 read with Order 43 Rule 1(d) CPC has been filed by the appellant-defendant-applicant (hereinafter 'the defendant') against the order dated 15-5-2012 passed by Additional District Judge Kishangarh, District Ajmer dismissing defendant's application under Order 9 Rule 13 CPC for setting aside the ex-parte decree dated 30-10-2010 in favour of the respondent-non-applicant-plaintiff (hereinafter 'the plaintiff') in his suit for specific performance.

(2.) Heard learned counsel for the parties, and perused the impugned order dated 15-5-2012 passed by the trial court.

(3.) The plaintiff filed a suit for specific performance before the trial court on 30-9-2009. Notice on the suit was served on the defendant on 7-10-2009 and receipt of summons is admitted by the defendant. Yet the defendant did not file presence before the trial court. Therefore on 8-10-2009 the proceedings were made ex-parte against him. Thereupon the trial court appears to have heard the plaintiff on his application under Order 39 Rules 1&2 CPC and granted ex-parte injunction directing the defendant to maintain status quo with regard to the suit property. As the defendant was proceeded ex-parte, a copy of the injunction order dated 22-10-2009 was served on the defendant on 27-10-2009, through the Process Server of the trial court. The Process Server Saiyad Osaf Hussain has been examined as NAW-4 in the proceedings under application under Order 9 Rule 13 CPC, and has stated, having entered the witness box, that the interim order dated 22-10-2009 was served on the defendant himself at his village Patan on 27-10-2009. The copy of the order dated 22-10-2009 was received by the defendant himself. Receipt of interim order dated 22-10-2009 signed by the defendant on 27-10-2009 was filed before trial court as Ex.A/2 and was duly proved by the witness. The defendant continuing to be absent in the proceedings of the suit for specific performance in spite of service of summons on him, the ex-parte decree was passed on 30-10-2010. On 27-1-2011 Petition No.28/2011 for execution of the decree dated 30-10-2010 was filed by the plaintiff. Notices of execution petition were issued to the defendant and again the same are stated by the counsel for the plaintiff to have been served on the defendant. Despite service of notice on the execution petition on 5-2-2011 the defendant did not appear. Therefore the learned Executing Court on 28-3-2011 pursuant to decree dated 30-10-2010 executed the conveyance deed in favour of the plaintiff-decree holder qua the the suit property in terms of the ex-parte decree dated 30-10-2010.