Allahabad High Court
Satyaveer Singh Alias Babu vs Aftab Alam on 20 July, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:145088
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 4232 of 2023
Petitioner :- Satyaveer Singh Alias Babu
Respondent :- Aftab Alam
Counsel for Petitioner :- Shrey Sharma,Akash Jaiswara
Counsel for Respondent :- Gyan Prakash Verma,Amod Tiwari,Ashoka Kumar Dubey
Hon'ble Jayant Banerji,J.
1. Heard Shri Anil Sharma, learned Senior Advocate assisted by Shri Akash Jaiswara, learned counsel for the petitioner and Shri Ashok Kumar Dubey, learned counsel for the sole respondent.
2. This petition has been filed seeking the following relief:
"i) Set-aside the order dated 2.11.2022 passed by the Respondent No.2, in Misc. Case No.13 of 2022 and the order dated 15.12.2022 passed by Respondent No.3 in Civil Revision No.168 of 2022 (Satyaveer Singh V/s Aftab Alam)."
3. It appears that an original suit bearing OS no. 233 of 2010 was filed by the plaintiff-respondent (wrongly described as a defendant-respondent in this petition), against the defendant-petitioner (wrongly described as a petitioner-plaintiff in this petition), seeking specific performance of an agreement to sell. By a judgment dated 5.5.2015, the suit was decreed ex-parte. Thereafter, the defendant-petitioner filed an application under Order 9 Rule 13 CPC which came to be allowed by the order of the Court dated 20.1.2020 on payment of cost of Rs. 2,000/-. Thereafter, the Courts were closed due to the COVID-19 pandemic and after reopening, though the plaintiff-respondent appeared, the defendant-petitioner did not appear. After giving several opportunities, on 8.12.2021, the suit was again decreed ex-parte. Thereafter, a restoration application dated 19.9.2022 was filed, that is enclosed as Annexure no. 3 to the affidavit. The application under Order 9 Rule 13 CPC was supported by an application under Section 5 of the Limitation Act. By an order dated 2.11.2022, the application under Section 5 of the Limitation Act was rejected by the trial court. The order dated 2.11.2022 was challenged by the defendant-petitioner in a civil revision bearing Civil Revision No. 168 of 2022, which was dismissed on 15.12.2022. The cause for dismissal of the revision as infructuous, as mentioned in the impugned order, is that the sale deed was executed. That is to say, the decree was satisfied.
4. Learned counsel for the petitioner has vehemently argued that the revision could not have been dismissed as infructuous on the ground of satisfaction of the decree. The contention is that the trial court was well within its competence to adjudge the application under Order 9 Rule 13 CPC even after execution of the decree. In support of his contention, learned counsel has relied upon a judgment of this Court in Shri Arjun Singh vs. IInd Addl. Civil Judge, Aligarh And Others reported in 1994(23) ALR 506. Learned counsel contends that, as held in paragraph no. 5 of the judgment in Shri Arjun Singh (supra), the execution of the decree does not deprive the court of its power under Order 9 Rule 13 CPC to set it aside, if the conditions precedent laid down in the above provision are satisfied.
5. Shri Ashok Kumar Dubey, learned counsel for the respondent has strongly opposed this petition on the ground that the decree has now been executed and the revisional court was well within its jurisdiction have passed the order dismissing the civil revision as infructuous. It is contended that, on similar facts, a co-ordinate bench in the case of Pyare Vs. Beni Ram and others, the judgment of which was passed on 11.4.2017 in Writ-C no.19449 of 2000, has refused to interfere in the petition. The contention is that even on an earlier occasion, when the suit was decreed ex-parte, a restoration application was filed which came to be allowed but despite that, the petitioner did not pursue the suit. It is contended that after the COVID-19 pandemic, it was for the petitioner to have enquired about the status of the case and there is no provision under the General Rules (Civil) that mandated issuance of notice to the petitioner inasmuch as the case was being considered by the same court in which the trial was pending and the case was not transferred to another court.
6. Having heard the rival contentions of the learned counsel for the parties, a perusal of the record reveals that previously, after the suit was decreed ex-parte, an application under Order 9 Rule 13 CPC was filed, which came to be allowed on 20.1.2020 with cost. Thereafter, as is evident from the order-sheet filed by the petitioner, the case was being adjourned from time to time due to the COVID-19 pandemic. However, after the pandemic, the case was fixed on various dates but the petitioner-defendant did not appear on any date. As such, by the judgment dated 8.12.2021, the suit was allowed and a decree was prepared subsequently.
7. While rejecting the application under Section 5 of the Limitation Act, the trial court has observed that the suit is very old and on 27.9.2011, the suit was directed to proceed ex-parte against the defendant. After which, on 5.5.2015, the suit was decreed. Following an application under Order 9 Rule 13 CPC, which was allowed on 20.1.2020, the case was restored to its number. It is noted by the trial court that the petitioner-defendant had full knowledge of the order dated 20.1.2020 and had engaged an advocate who had also filed his vakalatnama which was on record. Under the circumstances, the contention of the petitioner-defendant that he had no knowledge of the order passed by the court and that after gaining knowledge he filed the application, cannot be accepted. The application under Section 5 of the Limitation Act was, therefore, dismissed.
8. The revisional court, holding that the sale deed was executed and, therefore, the decree stood satisfied, held the revision to have become infructuous and dismissed the revision. After a decree is satisfied, whether the trial court would be rendered functus officio is an issue that has not been addressed by the learned counsel. The judgment that has been relied upon by the learned counsel for the petitioner would not be of any assistance to the petitioner inasmuch as in that judgment, it was an application under Order 9 Rule 13 that was considered, and not an application filed under Section 5 of the Limitation Act filed alongwith an application under Order 9 Rule 13 CPC.
9. In the instant case, it is the application under section 5 of the Limitation Act that was filed along with the application under Order 9 Rule 13, which was under consideration. The contention of the learned counsel for the petitioner that he had no knowledge of the dates being fixed in the court after the COVID-19 pandemic, cannot be accepted. Since, as observed by the trial court, he had full knowledge of the order dated 20.1.2020 and had also engaged an advocate who had filed his vakalatnama, which was on record.
10. Under the facts and circumstances of the case, interference in the order impugned is declined.
11. This petition is, accordingly, dismissed.
Order Date :- 20.7.2023
K.K.Tiwari
(Jayant Banerji, J.)
