Ashok Kumar and Others vs Nanak Chand and Others

Deepak Gupta, J.—Admittedly, the petitioners herein were proceeded against ex parte by the learned Trial Court. There were as many as 56 defendants before the learned Trial Court. All the defendants were proceeded against ex parte in the suit and ex parte decree was passed in favour of the defendants. Only one defendant, i.e., defendant No. 17 applied for setting aside the ex parte decree and the learned District Judge has held that he was not served in accordance with law and set aside the decree qua defendant No. 17 alone.

The grievance of the petitioner is that it was recorded in the judgment of the learned Lower Appellate Court that some defendants had died during the pendency of the case and, therefore, the decree itself is a nullity. It is also prayed that once the ex parte proceedings were set aside against defendant No. 17, a similar order should have been passed qua the other defendants also.

Unfortunately, the only person who approached the learned Lower Appellate Court was defendant No. 17 and the learned Lower Appellate Court could have passed an order only in favour of defendant No. 17. In fact, from a perusal of the Judgment of the learned Lower Appellate Court, I find that even before it, though proforma respondents were served but they did not care to put in appearance. In such circumstances, the Court could not take upon itself the responsibility of passing orders in favour of all the respondents.

Therefore, I find no error in the judgment of the learned Lower Appellate Court. Having held so, I feel that this is a fit case to grant liberty to the respondents to either apply for setting aside the ex parte proceedings or to set aside the decree in case the same is a nullity, as alleged by them. Obviously the plaintiff shall have the right to contest the same on all grounds available to him. The record of the learned Trial Court be sent back immediately.

With these observations, the petition is disposed of. No order as to costs.