Dhanusdeo Mahto vs Maheshi Mahto
2021 Latest Caselaw 1391 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                  S.A. No. 221 of 2013
        1.Dhanusdeo Mahto
        2.Radhey Shyam Mahto
        3.Vivekanand Mahto
        4.Bishundeo Yadav
        5.Ramlakhan Yadav.....................              Appellant(s)
                                Versus
        Maheshi Mahto............                                 Respondent
                                ......

Coram: Hon'ble Mr. Justice Ananda Sen ......

        For the Appellants               : Mr. Manjul Prasad, Sr. Advocate
        For the Respondent               : Mr. Baban Prasad, Advocate
                                ......

4/18.03.2021     The lawyers have no objection with regard to the proceeding,

which has been held through video conferencing today at 11.00 A.M. They have no complaint in respect to the audio and video clarity and quality.

This second appeal is directed against the judgment and decree dated 19th September, 2013, passed in Title Appeal No. 38 of 2011 by the District Judge-IV, Palamau, whereby he affirmed the judgment and decree dated 26th July, 2011, passed in Title Suit No. 49 of 1999 by the Munsif, Palamau at Daltonganj.

This is the judgment of confirmation.

Learned senior counsel appearing for the appellants submits that on absolutely wrong application of law, the Title Suit No. 52 of 1992 was dismissed. He submits that the said suit was filed for declaring the decree/judgment passed in Title Suit No. 52 of 1992 dated 02.08.1996 by the Court of Munsif, Daltonganj as unlawful. He submits that the said declaration should have been granted by the courts. He further submits that the permanent injunction against defendant nos. 1 & 2 to not interfere in lawful exercise of the possession of the plaintiff, as sought for, was also not considered. He further submits that the aforesaid judgment in Title Suit No. 52 of 1992 was ex parte, the instant suit for declaration is maintainable.

Heard the appellants.

The appellants, herein, were the plaintiffs before the trial court and were the appellants before the first appellate court. This means this is a judgment of affirmation.

A plaint was filed for declaring the judgment passed in Title Suit No. 52 of 1992, by the Munsif, Daltonganj as bad. The aforesaid title suit was filed for declaring the sale deed nos. 13,170 and 13,172, dated 27.12.1988 bad and without consideration. The said suit was decreed ex

parte on 02.08.1996 as the defendants in that case, i.e. the plaintiffs in the instant appeal did not appear in the said suit under unavoidable circumstances. It is the case of the plaintiffs that they obtained the certified copy and thereafter prepared the plaint and filed Title Suit No. 49 of 1999 challenging the ex parte decree.

The trial court took into consideration the provision of law, i.e. the Order IX Rule 13 of the Code of Civil Procedure and thereafter, has held that the plaintiffs are not entitled to get any relief. The Appellate Court also after considering the submission of the parties has held as follows:

"15. ....... It is settled that ex parte decree is as good as a contesting decree unless it is set aside. As settle that an ex parte can be set aside by the court passing it or by an appellate court only at the instance of person aggrieved thereby. .(JLJR 2003 (1) S.C. 286). Remedy of the plaintiff/appellant was available firstly file appeal or can file application under Order IX Rule 13 to set aside ex parte decree. The plaintiff appellant admittedly did not choose any one of the mode as held in A.I.R. 2005 (SC) 626. It is also held therein that when ex parte decree is passed, the defendant have opportunity for filing review petition and a suit for setting aside the ex parte decree on the ground of fraud was as to two clear option, (i) to file appeal and (ii) to file application for setting aside or in terms of order 9 rule 13 C.P.C. He can take recourse to both the proceeding simultaneously but in the event of appeal is dismissed as a result where the ex parte decree passed by the trial court emerges with the order passed by the appellate court. The aggrieved party against the judgment and decree where it is ex parte or contesting raised the plea that the court have lacking the jurisdiction and it can also be ground for setting aside the ex parte decree under Order IX Rule 13 C.P.C."

I find that both the courts, i.e. the trial court as well as the Appellate Court have rightly applied the law and have dismissed the suit, in view of the provision of CPC, i.e. Order IX Rule 13 CPC. Thus, I find that no substantial question of law is involved in this appeal. This appeal is thus dismissed.

(Ananda Sen, J)

Mukund/-cp. 2