2019 (7) TMI 1842 - SC - Indian Laws

Suit for specific performance - seeking specific relief and mandatory injunction - service of notice of execution proceedings - ample opportunity of hearing was provided or not - HELD THAT - The appellant came to be served notice of the execution proceedings through said messenger on 27.03.2015. Thus, the case of the appellant that appellant came to know about the passing of the decree only on 17.11.2015, cannot be acted upon. This is besides noticing that in execution of the decree, the sale deed has been executed in favour of the respondent and it is only thereafter that despite receipt of the notice dated 27.03.2015, the appellant has set up the case that he came to know of the passing of the decree only several months thereafter. The matter arises from a suit for specific performance. It may be true that there is a case for the respondent that the appellant has actually let out the building on rent. The appellant s case is that this is the appellant s residential house and the matter is a loan transaction. Specific relief is undoubtedly a discretionary relief - the interest of justice demands that subject to putting the appellant on terms, an opportunity should be given to the appellant to contest the case and the case must be directed to be disposed of within the time limit. The appellant will deposit a sum of ₹ 67,400/- within a period of one month from today in the Execution Court - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against High Court order setting aside ex parte decree under Order 9 Rule 13 of CPC, 1908.

Analysis:
The case involved an appeal against the High Court's order setting aside an ex parte decree obtained by the respondent in a suit seeking specific relief and mandatory injunction. The Trial Court had allowed the defendant's application under Order 9 Rule 13 of the Code of Civil Procedure, which was subsequently set aside by the High Court. The defendant argued that the original summons was served on his mother, and he was not aware of the proceedings leading to the ex parte decree. The appellant contended that the property in question was more valuable than stated and that the transaction was a loan, requesting an opportunity to contest the matter on merits.

The respondent, on the other hand, argued that ample opportunity had been given to the appellant, who failed to contest the matter despite having another residential building. It was highlighted that the property had already been conveyed to the respondent through execution of the decree, and the sale deed had been executed in her favor. The respondent claimed that the appellant was served notice by the executing court, and there was no basis for interference by the Court.

The Court emphasized that litigation should ideally be based on adjudication of the parties' contentions on merits rather than being terminated by default. Considering the facts, including the disputed agreement date, service of summons, and the appellant's knowledge of the suit, the Court directed the appellant to deposit specific amounts within a month to set aside the impugned order. These conditions included depositing sums towards stamp duty, registration expenses, and costs for the respondent. Compliance with these conditions would allow the appellant to contest the case, subject to disposal within a specified time frame, failing which the appeal would be dismissed.

In conclusion, the Court allowed the appeal, setting aside the impugned order subject to the specified conditions, aiming to balance the interests of justice and providing an opportunity for the appellant to contest the suit within a defined timeline.