Shri Pitamber Singh And Smt. ... vs Shri Roop Chand
2007 Latest Caselaw 516 Del

JUDGMENT

J.M. Malik, J.

1. The facts of this case are that Roop Chand, father-in-law of Pitamber Singh, appellant No. 1, filed a suit for recovery ofRs. 2,40,000/- against Pitamber Singh and his wife, Smt.Rukmani Devi on 7th March, 1995. On 2nd December, 1996, both the appellants/defendants appeared before the Court. They sought time for filing written statement. On 13th October, 1997, the case was adjourned to 9th December, 1997 for filing written statement by the said defendants. On 9th December, 1997, none appeared for the defendants. They were proceeded against ex parte. Ex parte decree was passed on 18th December, 1997. The plaintiff, Roop Chand, filed Execution Petition on 7th April, 1998. After taking the report of the Civil Nazir, attachment warrants were issued. The attachment warrants were received back unexecuted with the report that JD No. 2 had sought 15 days time to pay the decretal amount. Thereafter, the application under Order IX Rule 13 CPC was moved on 29th March, 1999.

2. In the application under Order IX Rule 13 CPC, the appellant Nos. 1 and 2 (the defendants) made the following averments. The suit property was not sold forRs. 2,40,000/- . Their father-in-law never entrusted the said amount with them. When they came to know about the filing of the suit, they contacted their relatives and in-laws for mediation. Due to intervention of the relatives, the respondent, Roop Chand, told them that he would not pursue the matter and promised them that he would withdraw the suit or would get the same dismissed. Due to the assurance given by the respondent, Roop Chand, they did not appear before the Court or did not contest the suit or attend to court proceedings.

3. The respondent contested the said application tooth and nail.

4. The trial court found no favor with the pleas raised by the appellants and dismissed the application under Order IX Rule 13 CPC. The trial court came to the conclusion that the appellants have failed to prove that they were prevented by sufficient cause from appearing. The trial court also placed reliance on an authority reported in 1999 Allahabad Law Journal 897(900).

5. Aggrieved by the orders passed by the trial court, the appellants have preferred the present appeal.

6. Learned Counsel for the appellants vehemently argued that he has got a very good case. He prays that opportunity should be granted to the appellants to contest their case.

7. Heard counsel for the parties. Although the bizarre conduct of the appellants cannot be swept under the carpet, yet, as suggested by the learned Counsel for the respondent, I set aside the ex parte decree, subject to appellants depositing the entire decretal amount with the trial court within a month. In case this order is complied with and the decretal amount is deposited with the trial court, the trial court shall give an opportunity to the appellants to contest their case. The appellants be granted time to file their written statement and the proceedings will continue from the very start.

8. FAO 403/2000 accordingly stands disposed of. The parties are directed to appear before the trial court on 16th April, 2007 for further proceedings. It is also directed that the appellants/defendants would file written statement before the trial court on 16th April, 2007.