* 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,
FAO No.448/2001 Page 3 of 20
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
FAO No.448/2001 Page 4 of 20
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
FAO No.448/2001 Page 5 of 20
the deft. himself. Defendant himself has notcared 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
FAO No.448/2001 Page 6 of 20
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.
FAO No.448/2001 Page 7 of 20
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.
FAO No.448/2001 Page 8 of 20
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
FAO No.448/2001 Page 9 of 20
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
FAO No.448/2001 Page 10 of 20
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
FAO No.448/2001 Page 11 of 20
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
FAO No.448/2001 Page 12 of 20
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
FAO No.448/2001 Page 13 of 20
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.
FAO No.448/2001 Page 14 of 20
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
FAO No.448/2001 Page 15 of 20
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 theFAO No.448/2001 Page 16 of 20
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
FAO No.448/2001 Page 17 of 20
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.
FAO No.448/2001 Page 18 of 20
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.
FAO No.448/2001 Page 19 of 20
31. Trial court record be sent back.
7th August, 2009 V.B.GUPTA, J.
bhatti
FAO No.448/2001 Page 20 of 20