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‘REPORTABLE’

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2062 OF 2009

Vijay Singh           … Appellant(s)

Versus

Shanti Devi and Anr.  …Respondent(s)

J U D G M E N T  

Deepak Gupta, J.

1. “Whether, in a suit for pre­emption, an ex parte decree

which is later set aside, can be termed to be the decree

of the court of first instance” is the  question  which

arises for decision in this appeal.  

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2. The undisputed facts are that one Roop Chand sold the

suit land  in  favour of  Shanti  Devi,  respondent No.  1

herein.  Vijay  Singh,  appellant  who  was  a  co­sharer

with  Roop Chand, filed  a  suit for  possession  on  the

basis of right of pre­emption  granted to a co­sharer

under the Punjab Pre­emption Act, 1913 (for short ‘the

1913 Act’) on 6th  November, 1989.   The defendant

Shanti  Devi  was  proceeded against ex parte on  6th

April, 1990.  Thereafter, an ex parte decree was passed

against her on 10th April, 1990.   Pursuant to the

decree, execution petition was filed and the appellant

Vijay  Kumar  took possession of the  suit land on 7th

June, 1990.   

3. On the same day, i.e., 7th June, 1990, Shanti Devi filed

an application under Order IX Rule 13 of the Code of

Civil  Procedure  (for  short ‘CPC’) for  setting  aside the

decree  dated 10th April,  1990 claiming that  she  had

not received the summons and had no knowledge of the

proceedings.  It was alleged that only when possession

was taken on 7th June, 1990 did she become aware

that the appellant Vijay Kumar had initiated some legal

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proceedings against her.  The trial court dismissed the

application filed by Shanti Devi for setting aside the ex

parte decree on 4th October, 1993.   Thereafter, Shanti

Devi filed an appeal before the appellate court.   

4. In the meantime, on 17th May, 1995 the State of

Haryana amended Section 15 of the 1913 Act.  The net

effect of this amendment was that the amendment took

away the   right of pre­emption of a co­sharer and the

right of pre­emption was only retained with a tenant.   

5. The appellate court allowed the application filed by

Shanti Devi and set aside ex parte decree on 28th

August, 1998.   The appellant herein challenged the

order of the appellate court by filing civil revision

petition in the Punjab and Haryana High Court, which

was dismissed on 5th November,  1999.  It  would be

pertinent to  mention that the learned Judge, while

dismissing the revision petition, also observed that in

view of the amendment to the 1913 Act the appellant

herein had no right to  pre­empt  the  sale  of the  suit

land.  The appellant then filed Petition for Special Leave

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to Appeal  (Civil)  No.  3488 of  2000 before this Court,

which was disposed of on 10th March, 2000.  This Court

not only dismissed the petition but also ordered that

the trial court  would decide the suit afresh  without

being influenced by the observations on merit, made by

the learned Judge of the High Court.   

6. Thereafter, the suit was tried afresh and the  main

ground raised by Shanti Devi was that in view of the

amendment  made to the  1913  Act, the right of pre­

emption was no longer available to the appellant.   On

the other hand, the appellant contended that the date

of decree of the first court was 10th April, 1990 when

the ex parte decree  was passed and, therefore, the

rights of the parties are governed by the law as it stood

on that date.  

7. After remand, the learned trial court dismissed the suit

of the appellant on 27th November, 1999 on the ground

that by virtue of amendment to the 1913 Act, the right

of pre­emption stood extinguished.   The appellant,

thereafter, filed first appeal before the appellate court,

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which was also dismissed.   The regular second appeal

also met the same fate.

8. The issue to be decided is a legal issue which stands in

a narrow compass.  Before dealing with the issue itself,

it would be pertinent to refer to the Constitution Bench

judgment of this Court in the case of  Shyam Sunder

& Ors.  v. Ram Kumar & Anr.,  1 wherein this Court

considered  the effect  of the  amendment  made to the

1913 Act.  This  Court held  that if  Section 15 of the

1913  Act  was amended during the pendency of the

appeal  before the  Supreme Court, the decree  of  pre­

emption  would  not  be  affected  by such  amendment.

After discussing the entire law, the Constitution Bench

culled out the following legal principles:

“10. On an analysis of the aforesaid decisions referred to in the first category of decisions, the legal principles that emerge are these:

1. The pre­emptor must have the right to pre­empt  on  the date of  sale,  on  the  date of filing of the suit and on the date of passing of the  decree  by the  court  of the first instance only.

2. The pre­emptor who claims the right to pre­empt the sale on the date of the sale must

1   (2001) 8 SCC 24,

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prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal  or above the right of the claimant before the adjudication of suit, the suit for pre­emption must fail.

3. A pre­emptor who has a right to pre­empt a sale on the date of institution of the suit and on  the date of  passing of  decree, the  loss of such right subsequent to the decree of the first court would not affect his right or maintainability of the suit for pre­emption.

4. A pre­emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre­ emption  by the court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.”

9. In view of the decision of the Constitution Bench, it is

not necessary to refer to various other judgments cited

before us. A perusal of the principles laid down by the

Constitution Bench clearly indicates that the pre­

emptor should possess the right to pre­empt on three

dates:

(i) the date of sale; (ii) the date of filing of the suit; and (iii) the date of passing of the decree by the court of first

instance only.

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 As far as the first two conditions are concerned, there

is no dispute that the appellant possessed the right of pre­

emption on the date of sale as also on the date of filing of the

suit since he was a co­sharer in the land in question.   It is

also not disputed that on 10th April, 1990 when the ex parte

decree was passed in favour of the appellant he had a valid

legal right of pre­emption in his favour.   

10. The question to be decided is what is the effect of

setting aside of the ex parte decree and the passing of

fresh decree by the court of first instance on 27th

November, 1999 on which date, admittedly, the

appellant   did not have a valid right to pre­empt the

sale in view of the amendment to the 1913 Act.    

11. Order IX Rule 6 of CPC, reads as follows:

“ORDER IX­ APPEARANCE OF PARTIES AND CONSEQUENCE OF NON­APPEARANCE

      xxx                      xxx                           xxx

6. Procedure when only plaintiff appears.­ (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then

(a) When summons duly served—lf it is

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proved that the summons was duly served, the court may make an order that the suit be heard ex parte;

(b) When summons not duly served—If it is  not  proved  that the  summons was duly served, the court shall direct a second summons to be issued and served on the defendant;

(c)  When  summons  served  but  not in due time—If it is proved that the summons was served on  the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the court shall postpone the hearing of the suit to a future day to be fixed by the court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not  served  in  sufficient time, the  court shall order the plaintiff to pay the costs occasioned by the postponement.”

12. We are only concerned with clause (a), which

provides that if summons are duly served and the

defendant does not put in appearance, the court may

make an order that the suit would be heard ex parte.

In this case, this was the procedure followed and an ex

parte decree was passed.  There is no manner of doubt

that an ex parte decree is also a valid decree.  It has the

same force as a decree which is passed on contest.  As

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long as the ex parte decree is not recalled or set aside,

it is legal and binding upon the parties.   

13. Order IX Rule 13, CPC reads as follows:

“ORDER IX­ APPEARANCE OF PARTIES AND CONSEQUENCE OF NON­APPEARANCE

      xxx                      xxx                           xxx

13. Setting aside decree ex parte against defendants— 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

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application shall lie under this rule for setting aside the ex parte decree.”

14. The aforesaid provision lays down the procedure for

setting aside a decree passed ex parte.   The court can

set  aside  an ex  parte  decree  only  on  two  grounds  –

firstly, that the summons  was  not  duly served; and

secondly, that the defendant was prevented by

sufficient cause from appearing when the suit was

called  out.  Once an ex  parte  decree is  set  aside, it

basically  means that the parties  are  relegated to the

same position on which they stood before the passing of

the ex­parte decree.   

15. In the present case, the stand of the respondent No.

1 is that she was never served in the suit and she came

to know about the proceedings only on the date when

the decree was executed and the possession of the land

was taken from her.  On the same day itself she filed an

application for setting aside the ex parte decree.   This

application was dismissed by the trial court.  The lower

appellate court allowed the appeal filed by the

respondent  No.  1  herein  and set  aside the ex  parte

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decree  on  the  ground  that  she  had  not  been served

properly in the suit and, therefore, she had a

reasonable cause for not appearing on the date on

which the suit was called up.   

16. In  the  present  case, the result  would be  that  the

respondent No.1, Shanti Devi would be relegated to the

position  at  which  she  was  when she  was  proceeded

against ex parte which would be the date on which the

written statement was to be filed.  There is no manner

of  doubt that the effect  of setting  aside  an  ex  parte

decree is to restore the parties to the position at which

they were prior to the passing of the decree and relegate

them to the position on  which they  were  when the

defendant was proceeded against ex parte.  The parties

are restored to the position existing prior to the date

the order  proceeding  against the  defendant ex  parte

was passed.  No authoritative pronouncement of  this

Court has been placed before us in this regard.

However,  we  may refer to the judgments passed  by

various High Courts in the case of  Kumararu

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Narayanaru v. Padmanabha Kurup Gopala Kurup2,

Beerankoya Haji   v.  P.P. Mohammedkutty  3,  Shah

Bharat Kumar v.  M/s. Motilal and Bharulal  4,  Aziz

Ahmed Patel  v.  I.A.  Patel  5, Mst.  Lakshmi Devi  v.

Roongta & Co.6,  Venkatasubbiah  v.

Lakshminarasimhan 7,  which have taken this view.

17. It would be pertinent to mention that the mere fact

that the ex parte decree has been executed does not

disentitle the defendant from applying under Order IX

Rule 13, CPC to get the same set aside.  Reference may

be made to  Sm. Sankaribala Dutta   v.   Sm. Asita

Barani Dasi and others8 and Mst. Fatima Khatoon

v.  Swarup    Singh9.  Once the  decree is set aside,

restitution or restoration can be ordered.

2   AIR 1953 (TC) 426 3   AIR 1986 Ker 10 4   AIR 1980 Guj 50 5   AIR 1974 (A.P.) 1 6   AIR 1962 (All.) 381 7   49 Mad.L.J.273

8   AIR 1977 Calcutta 289 9   AIR 1984 Calcutta 257

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18.On behalf  of the appellant  it  has been urged that  in

Shyam Sunder’s  case (supra), this  Court  made  no

exception for ex­parte decrees  while setting out the

principles which have been quoted hereinabove and the

ex parte decree should be treated to be the decree of

the court of first instance.   That  was  not an issue

raised before the Constitution Bench.   This Court was

only concerned with the issue whether the amendment

to the 1913 Act taking away the right of pre­emption

vested in the co­sharer introduced after the decree was

passed  by the court of first instance and the effect

thereof.  The  issue which  is raised  in  this  case  was

neither directly nor impliedly the subject matter of

decision in Shyam Sundar’s  case (supra). 19.An ex parte decree is passed when the court believes

that the defendant has been served but is not

appearing in court despite service of summons.  In the

present case, the appellate court while setting aside the

ex parte decree, has come to the conclusion that the

defendant Shanti  Devi (respondent no.  1 herein)  was

not served and, therefore, the court had wrongly

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proceeded against her ex parte.  That finding has been

upheld till  this Court.   In our view, the effect of this

would  be that the ex  parte  decree, on its  being set

aside, would cease to exist and become non­est.  After

the ex parte decree is set aside,   it is no decree in the

eyes of law.   The decree passed by the trial court on

merits should be treated as the decree of the first court.

We  may  make it clear that  we  are  not  dealing  with

those cases where a case has been decided on merits

and the decree is set aside by the appellate court on

any other ground and the matter remanded to the trial

court for decision afresh.  We leave that question open.

20. Here, we are dealing with a case where the

defendant  was proceeded against ex parte and that

order has been set aside on the ground that she has

not been served and, therefore, she has been relegated

to the position existing on the date she was proceeded

against ex­parte, i.e., 6th  April, 1990.   After the

amendment was introduced on 17th  May, 1995, there

was no right existing in the plaintiff  to file a suit for

pre­emption.   Since the decree on contest was passed

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on 27th  November,  1999 the plaintiff  had no existing

right of pre­emption on that date and the suit  was

rightly dismissed.   This decree  is  the only subsisting

decree of the first court.

21. Shri Amarendra Sharan, learned senior counsel

appearing for the appellant urged that since possession

of the property was taken as far back as 7th June, 1990,

no restitution can be ordered at this belated stage and,

therefore, there is no point in upholding the decree.  On

the other hand, Shri Shantwanu Singh, learned

counsel appearing for the respondent No. 1 has urged

that this Court should exercise its power under Article

142 of the  Constitution  of India  and direct that the

property be restored to the respondent No. 1, who has

been litigating for  many years.  

22. We cannot accept either of the two submissions.

The limitation for restitution under the Limitation Act is

12 years.   The ex parte decree was set aside on 28 th

August,  1998 and thereafter, the appellant  has  been

litigating at various levels.   If the appellant had

obtained stay order(s) during this period, obviously the

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period for which the stay was granted, would have to be

excluded while calculating the period of limitation.

This is not the job of this Court.  It is for the executing

court to decide whether the restitution petition, if any

filed, is within the limitation or not.  It is only the court

which passed the original decree, which can order

restitution.   Restitution cannot be granted by the

Supreme Court, as held in the case of  State Bank of

Saurashtra  v. Chitranjan Rangnath10.

23. In view of the above, we find no merit in the appeal,

which is accordingly dismissed.   Status quo granted

vide order dated 27.11.2006, which was directed to be

continued by order dated 30.03.2009, stands vacated.

....................................J. (MADAN B. LOKUR)

....................................J. (DEEPAK GUPTA)

New Delhi September  08, 2017   

10   (1980) 4 SCC 516.