Smt.Satrupa Aggarwal vs Sh. Nath (Huf) & Ors.
2009 Latest Caselaw 3040 Del

*      HIGH COURT OF DELHI : NEW DELHI

                   FAO No.448 of 2001

%            Judgment reserved on:,21st July, 2009

             Judgment delivered on: 7th August, 2009

Smt. Satrupa Aggarwal
R/o 3/90, Roop Bhawan
Nehru Street, Vishwas Nagar,
Shahdara, Delhi                            ....Appellant

                      Through:    Ms. Saahila Lamba.

                  Versus

    1. Sh. Nath (HUF)
       Through is Karta Shri Sri Nath
       R/o 36, Hanuman Road,
       New Delhi.

    2. Sh. Sri Nath
       S/o Late Krishan lal
       R/o 36, Hanuman Road,
       New Delhi.

    3. Sh. Prem Chander Soni
       R/o 38/2, East Patel Nagar,
       New Delhi

    4. Sh. Brahm Dev Soni,
       R/o F73/2, Kirti Nagar,
       New Delhi.

    5. Ms. Mini Kher
       W/o Rajesh Kher
       R/o 633, New Rajinder Nagar,
       New Delhi.


FAO No.448/2001                                 Page 1 of 20
    6. Ms. Niti Anand @ Niti Gupta
      W/o Sh. N. L. Anand,
      R/o R-633,
      New Rajinder Nagar,
      New Delhi.

   7. Sh. Narinder Lal Anand
      S/o Late N. R. Anand.
      R/o R-633, New Rajinder Nagar,
      New Delhi.

   8. Smt. Kamlesh Anand
      W/o Sh. Narinder Lal Anand,
      R/o R-633, New Rajinder Nagar,
      New Delhi.

   9. Sh. Asit Chiman Lal Mehta
      R/o E-82, Kirti Nagar,
      New Delhi.

  10. Dr. (Mrs.) Chanda Seth,
      R/o B-2/11, Vasant Vihar,
      New Delhi.

  11. Sh. Gurucharan Singh Chalwal,
     R/o J-6/102, Rajinder Nagar,
     New Delhi.

  12. Sh. Ravinder Singh Chawla
     R/o J-6/102, Rajinder Nagar,
     New Delhi.

  13. Master Aseem Goel
     Through his father and natural
     Guardian.
     R/o 6, New Cloth Market,
     Rajinder Nagar, Bhatinda          ...Respondents

                         Through: Nemo


FAO No.448/2001                             Page 2 of 20
 Coram:

HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                       Yes

2. To be referred to Reporter or not?                    Yes

3. Whether the judgment should be reported
   in the Digest?                                        Yes

V.B.Gupta, J.

Present appeal has been filed under Order 43 Rule (1)

read with Section 104 and 151 of Code of Civil Procedure

(for short as „Code‟), against order dated 2nd June, 2001,

passed by Additional District Judge, Delhi, vide which

applications filed by appellant under Order IX Rule 13 and

order XXII Rule 10, of the Code, were dismissed.

2. Brief facts are that, on 19th January, 1989, respondent

nos. 1 and 2 herein, filed a suit for declaration and

perpetual injunction against M/s D.K.G. Finance and Chit

Fund Private Ltd. (for short as „M/s D.K.G.‟)

3. Case of respondents before trial court was that, they

had purchased property no. 36, Hanuman, Road, New

Delhi, vide registered sale deed dated 17th December,

1963. Since that date, they had been using and enjoying

the space of land and common road (pathway) to reach

Hanuman lane, without any interruption.

4. In February, 1988, M/s D.K.G., blocked three feet

wide passage running along with back side of the wall of

respondents‟ house, which damaged their property and

also effected their right of easement.

5. M/s D.K.G. were duly served for 18th October, 1989

and their counsel put in its appearance, when the case was

pending before this Court. Subsequently, the case was

transferred to District Judge, who assigned it to Additional

District Judge. That court issued notice to M/s D.K.G. as

well as its counsel. Service upon M/s D.K.G. was effected

through pasting, while its counsel remained unserved. Vide

order dated 14th September, 1994, M/s D.K.G was

proceeded ex-parte.

6. On 10th September, 1996, it was observed by the trial

court that M/s D.K.G, could not be proceeded ex-parte,

since, they had been served by way of pasting at G-56,

Green Park, New Delhi, whereas, in written statement it

is stated that M/s D.K.G. no longer resides at the address

given in the plaint. The address filed by M/s D.K.G is 42-

B, Hanuman Lane, New Delhi. Hence, court notice was

ordered to be issued at 42-B, Hanuman Lane, New Delhi

for 29.11.1996.

7. On 29.11.1996, court notice was not received back, as

such, fresh court notice was ordered to be issued for 30th

January, 1997. On 30th January, 1997, trial court passed the

following order:

" 30.1.1997

Present: Counsel for plaintiff.

Notice sent to defendant received back

with the report that presently no such firm

exists at the given address. Similarly, the report

was on the notice sent for the date 29th of Sept.

1996. Deft. had already been proceeded ex-

parte and the case was ordered to be fixed for

ex-parte evidence and arguments. It is on 10 th

Sept. 1996 that the Ld. Predecessor ordered

fresh service at fresh address 42-B, Hanuman

Lane, New Delhi. At this address also deft. does

not resides. This was the address furnished by

the deft. himself. Defendant himself has not

cared to put in appearance despite the fact that

the case was very much in his knowledge since

the written statement is very much on record.

In these circumstances the defendant is

ordered to remain ex-parte as before. Let the

case be adjourned for arguments to 3.3.1997."

8. Thereafter, vide judgment dated 3rd May, 1997, an ex-

parte decree was passed for declaration and mandatory

injunction in favour of respondent nos. 1 and 2 and against

M/s D.K.G.

9. On 4th September, 1998, present appellant as well as

respondent nos. 3 to 13, filed applications under order IX

rule 13, under order XXII rule 10 and under order 1 rule 10

of the Code. Vide impugned order, these applications were

dismissed. Appellant who was one of the applicants, alone

had filed the present appeal.

10. In these applications, it was stated that a hole was

made in the wall of property bearing no. 42-B, Hanuman

lane, New Delhi and a police complaint was lodged about

the demolition of portion of the wall. On enquiries from

police it transpired that execution of Court order has taken

in pursuance of the decree passed in a suit filed by

respondent no. 1, against M/s D.K.G, but particulars of the

suit were not disclosed to the applicants. The applicants

continued to make efforts and came to know of the present

suit. On inspection of relevant file it transpired that M/s

D.K. G. had sold different portions of property constructed

on plot no. 42-B, Hanuman Lane, New Delhi to different

persons by virtue of registered sale deed executed at

different times. Present appellant had purchased space no.

105, on first floor of property No. 42-B, Hanuman Lane,

New Delhi, on 2nd February, 1990. M/s D. K. G did not

inform about pendency of any suit or proceedings, to any of

the applicants. Had it informed the applicants about

pendency of the suit, the applicants ought to have moved

an application as required. In none of the sale deed, M/s

D.K. G had pointed out about the pendency of any suit. It

is evident that portion of the property had already been

transferred, prior to the service of summons upon to M/s

D.K.G.

11. Notice of these applications were issued to the

respondents, and initially counsel appeared on behalf of

respondents no. 1 & 2.

12. On 18th March, 2008, counsel for appellant appeared

but nobody on behalf of respondents was present and

matter was ordered to be listed in due course.

13. Again, on 21st July, 2009, none appeared on behalf of

respondents. Arguments advanced by learned counsel for

appellant have been heard.

14. It is contended by learned counsel for appellant that

on 29th July, 2008, appellant got knowledge that "some

decree" had been passed in respect of the property owned

by her when a court bailiff came to her premises to execute

the decree. Thereafter, appellant made enquiries and got

knowledge about the particulars of decree. On 4th

September, 1998, appellant filed the present application.

The reasoning of trial court that appellant has no locus

standi is in contradiction to the dictum laid down by

Supreme Court in Raj Kumar Vs. Sardari Lal & Ors.

(2004) 2 SCC 601.

15. Other contention is that exact particulars of the case

and decree were not known to the appellant on 28th July,

1998, but she had the vague knowledge of the passing of

decree dated 3rd May, 1997. Thus, limitation for filing of

application under Order IX Rule 13 of the Code, cannot be

said to have started running from said date. On this point,

reliance has been put on a case decided by Supreme Court,

reported as Panna Lal Vs. Murari Lal AIR 1967 SC

1384.

16. Another contention is that, it is evident from record

that predecessor-in-interest of appellant was not properly

served by the transferee court and as such there are

sufficient grounds for setting aside the ex-parte decree.

17. Before delivering with the contentions of the

appellant, it is appropriate to refer to the relevant

provisions of the Limitation Act, 1963, as applicable to the

present case.

18. Article 123 of Limitation Act, provides for 30

days time for filing such an application, it reads as under:

____________________________________________________________ Description of application Period of Time from which

Limitation period begins to run ____________________________________________________________ To set aside a decree Thirty days The date of decree passed ex parte or to or where the sum-

re-hear an appeal decreed mons or notice or heard ex parte. was not duly serv-

ded, when the

applicant had

knowledge of

decree.

Explanation: For the the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not Be deemed to be due service.

____________________________________________________________

In view of this provision, application for setting aside ex

parte decree must be filed within 30 days, either from the

date of decree or where the summons or notice were not

duly served, from the date when the applicant had

knowledge of the decree.

Supreme Court in Sunil Poddar and others v. Union

Bank of India, AIR 2008 SC 1006 held;

"18. Accepting the recommendations of the Law Commission, the rule was amended by the Code of Civil Procedure (Amendment) Act, 1976. Rule 13 of Order IX with effect from February 1, 1977 now reads thus;

13. Setting aside decree ex parte against defendant-In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against

such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

Explanation.-Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. (emphasis supplied)

19. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he

had sufficient time to appear and answer the claim, of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff's claim, he cannot put forward a ground of non service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order IX of the Code. Since the said provision applies to Debt Recovery Tribunals and Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before the DRT, they had no sufficient time to appear and answer the claim of the plaintiff-bank and on that ground, ex parte order deserves to be set aside."

19. As per record, court notice to M/s D.K.G as well as

their counsel was issued. The same was served upon the

counsel, but he did not appear after the case was

transferred to District court despite direction given by this

Court, vide order dated 17.8.1993 to appear before the

District court on 1.10.1993. Even after affixation of the

court notice on the address given by M/s D.K.G in its

written statement, no one appeared on its behalf.

20. In these circumstances, limitation has to run from

the service of notice, if the appellant had to move for

setting aside the decree. However, appellant who was

otherwise not defendant in the suit, filed in the trial court,

filed application under Order IX Rule 13 of the Code,

pleading knowledge on a particular date. In entire

application, nothing has been pleaded with regard to as to

when appellant got the knowledge, regarding the pendency

of the suit or execution. Relevant portion of the application,

reads as under:

"1. That a hole was made in the wall of the property bearing No. 42-B, Hanuman Lane, New Delhi. A police complaint was lodged about the demolition of portion of the wall in the form of hole made therein. On inquiries from the police it had transpired that the execution of court order has been taken in pursuance of the decree passed in a suit filed by one Shri Sri Nath against M/s D.K.G.

Finance & Chit Fund Private Ltd. but the particulars of the suit were not disclosed to the applicants.

2. That the applicants continued to make the efforts and also to contact M/s D.K.G. Finance & Chit Fund Private Ltd. Lastly the applicants came to know of the filing of the present suit by Shri Sri Nath for the purposes of inspection, the applicants assigned the case of the counsel.

3. That the applicants came to know of the ex-parte decree passed by this Hon‟ble Court in the above noted suit and the execution proceedings having taken place in pursuance of ex-parte decree on inspection of the file conducted by applicants‟ counsel."

21. Appellant in its entire application, miserably failed to

mention about her knowledge, regarding the pendency of

the execution petition. Contents of the application clearly

shows that the appellant came to know about the execution

of the decree only on the date when a hole was made in the

wall of the property bearing no. 42-B, Hanuman Lane, New

Delhi. The demolition was done on 29th July, 1998, which

has been mentioned by respondents no. 1 & 2 in their

reply, and the same has not been controverted by appellant

in her rejoinder.

Supreme Court, in Mahabir Singh v. Subhash and

others, AIR 2008 SC 276 while dealing with provisions

of order IX rule 13 of the Code held:

"Thus, even assuming for the sake of argument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service of summons was irregular, evidently, it was for the defendant-respondent to establish as to when he came to know about the passing of the ex parte decree. Even in his cross- examination, the first respondent has categorically admitted that he had approached the appellant herein for not giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said ex parte decree. The period of limitation would, thus, be reckoned from that day. As the application under Order IX Rule 13 of the Code of Civil Procedure was filed one and a half year after the first respondent came to know about passing of the ex parte decree in the

suit, the said application evidently was barred by limitation."

22. In the present case, appellant has not specified as to

on which date, she came to know about passing of the ex

parte decree. The application is vague and does not give

any detail or particulars. In this regard trial court

observed;

            "Accordingly,       I    find    that       it   was       on
           29.7.1998,     the       applicants      had       got     the
           knowledge        regarding             the        execution

proceedings in pursuance of the decree passed by the court against the JD.

Accordingly, in view that Article 123 of the Limitation Act, the application for setting aside the ex-parte decree must have been filed within 30 days from the date of such knowledge of the applicants. Though, the JD was duly served with the notice and he had filed the WS and at the same time he was having knowledge regarding the date of appearance before the Ld. District Judge, as per the directions of the Hon‟ble High Court and at the same time he was also served through his counsel to appear on a particular date. Even assuming that the limitation has to run from the date of

knowledge in respect of moving the present application, I find that the present application that has been filed on 4.9.98 was filed after the expiry of the period of limitation of 30 days from the date of such knowledge on 29.7.98. No cause much less than sufficient cause has been explained in the entire application for explaining the delay in filing the said application falling within any of the provisions contained u/s 4 to 24 of the Limitation Act. Accordingly, I find that the present that the present application moved by the applicants on 4.9.98 for aside the decree dt. 3.5.97, is hopelessly barred by limitation."

23. So, apparently if it is assumed that appellant came to

know only on 29th July 1998 about the ex parte decree

having been passed in this case, even then the present

applications are barred by period of limitation.

24. Coming to the case of Raj Kumar (Supra) as cited by

learned counsel for appellant, there is no dispute about the

principle of law enunciated in this case. However, the facts

of Raj Kumar (Supra) are all together different.

25. In Raj Kumar (Supra) case, the purchaser was not

aware of the pendency of the suit, but the vendor stated in

the sale deed that the property was not a subject matter of

any litigation.

26. In the present case, the appellant who is the alleged

purchaser of the property, has not placed on record copy of

the sale deed so as to show that vendor in its sale deed has

not stated that property sold to the appellant, is not a

subject matter of any litigation. As such Raj Kumar (Supra)

is not applicable to the facts of the present case.

27. As far as other judgments as cited by learned counsel

for appellant are concerned, the same are not applicable to

the facts of the present case.

28. Accordingly, I do not find any infirmity in the

impugned order passed by the trial court.

29. The present appeal is not maintainable and thus, the

same is hereby dismissed.

30. No order as to costs.

31. Trial court record be sent back.

7th August, 2009                            V.B.GUPTA, J.
bhatti