Ashok Kumar vs Kashmir Singh

Alok Singh, J.—Plaintiff - petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India, assailing the order dated 28.08.2010 passed by learned Additional District Judge, Mansa, whereby in an appeal, application moved by the defendant - respondent herein under Order 9 Rule 13 C.P.C. was allowed and ex-parte judgment and decree dated 24.12.2004 was set aside.

Learned Counsel for the petitioner vehemently argued that defendant was well aware about the decree. He further argued that possession of the disputed property was taken from the defendant in the month of July, 2005, hence there was no justification to set aside the ex-parte decree. He further argued that since decree has been executed, ex-parte decree cannot be set aside. He further stated that defendant should have filed an application under Order 9 Rule 13 C.P.C. within 30 days from the date of delivery of possession since possession was taken in his presence.

Learned Appellate Court has observed in the impugned order that defendant - respondent herein was never served in person. It has been further observed by the Court below that defendant was said to be served through munadi. It has further been observed by the Court below that Chowkidar Ram Rakha in whose presence munadi was said to be done has stated on oath that he has not affected any munadi. Learned Court below has also observed that plaintiff has failed to prove that munadi was affected properly. Learned Court below has also observed that interest of justice requires that matter should be decided on merit.

Merely because the decree is executed, it will not make any appeal or restitution infructuous. In view of Section 144 C.P.C., if decree is set aside later on, then party against whom decree was passed or execution was made, would be entitled for the restitution. Ld. Court below has discussed entire material to come to the conclusion that defendant was not served personally and service through munadi is not proved.

If discretion has been exercised by the Court below to hear the suit on merit after setting aside ex-parte judgment/decree, this Court while exercising the supervisory jurisdiction under Article 227 of the Constitution of India should be slow in disturbing such discretion.

Keeping in mind, the golden rule that none should be given walk over and lis between the parties, as far as possible, should be decided on merit after giving reasonable opportunities to both the parties, I do not find any reason to interfere with the view taken by the Court below.

Petition is dismissed.