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Judgment
Leave granted.
An ex-parte decree for specific performance of an Agreement to Sell was set aside by the Trial Court. A perusal of the order of the Trial Court shows that all the factors relevant for exercising discretion in favour of the applicant in the matter of condoning the delay in moving the application and finding out sufficient cause for setting aside the decree were kept in view. The High Court has, however, in exercise of revisional jurisdiction interfered with the order of the Trial Court which, in our opinion, within the limited jurisdiction available u/s 115 of the C.P.C. should not have been done. Ordinarily, a litigant should not be denied the liberty of contesting the case on merits.
The appeal is allowed. Judgment of the High Court is set aside and that of the Trial Court is restored.
There is some controversy whether in execution of ex-parte decree, possession was delivered from the judgment-debtor to the decree-holder by the Executing Court. If the Trial Court finds that the delivery of possession had taken place in execution proceedings then and then alone possession of plaintiff over the suit property may be maintained during the pendency of the suit; else the court may make such interim order as it may deem fit to make.