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2020 (11) TMI 1064 - HC - Indian LawsApplication seeking stay of the proceedings in an appeal filed by them before the Court of Principal District and Sessions Judge - application under Order 9 Rule 13 of the Civil Procedure Code, 1906 (CPC), filed before the Trial Court for setting aside ex-parte decree was pending - HELD THAT - A perusal of Order 9 Rule 13 of the CPC shows that it affords an opportunity to a defendant to apply to the Court for setting aside ex-parte decree by satisfying the Court that in the facts of the case, such an ex-parte decree could not have been passed. There cannot be dispute about the position of law that a defendant who has suffered an ex-parte decree can simultaneously invoke two remedies, firstly, by filing an application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC and secondly, by filing an appeal under Section 96 of the CPC. It was observed by the Hon ble Supreme Court in the case of RANI CHOUDHURY VERSUS LT. COL. SURAJ JIT CHOUDHURY 1982 (8) TMI 217 - SUPREME COURT that as per explanation to Order 9 Rule 13 of the CPC, after the appeal filed by the defendant against an exparte decree stood disposed of, it constituted sufficient reason for a ban on proceeding in an application for setting aside ex-parte decree filed by such aggrieved defendant - In the case of BHANU KUMAR JAIN VERSUS ARCHANA KUMAR ANR. 2004 (12) TMI 676 - SUPREME COURT , the Hon ble Supreme Court held that application under Order 9 Rule 13 of the CPC would not be maintainable once the Appellate Court disposes of the appeal, as the decree passed by the Trial Court merges with the order passed by the Appellate Court. It was also recognized that explanation to Order 9 Rule 13 of the CPC did not suggest that the converse was also true. A bare perusal of the aforesaid provision, along with position of law laid down and emphasized by the Hon ble Supreme Court, would show that the petitioners in the present case were entitled in law to seek stay of proceedings in the pending appeal before the Appellate Court, while pursuing the application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC. It is clear that if the appeal proceeds and stands disposed of, the application for setting aside ex-parte decree filed by the petitioners cannot be proceeded with and it would be rendered infructuous. It is in this backdrop, that the petitioners filed the aforesaid application for stay Exh.17 before the Appellate Court on 13/02/2017 i.e. more than two years after filing the appeal and the application for setting aside of ex-parte decree. There is no dispute about the fact that in the meanwhile the respondent No.1 (plaintiff/decree holder) deposited the balance amount of consideration on 06/08/2009 i.e. immediately after the decree was passed on 27/06/2009 and that the respondent No.1 also filed draft sale deed on 03/12/2011 before the Executing Court. Thus, a period of more than ten years has elapsed and the respondent No.1 was not been able to enjoy fruits of the decree, despite the fact that the entire balance consideration was deposited more than ten years earlier. The conduct of the petitioners is evident from the aforesaid material on record. This Court is of the opinion that law must act in aid of justice. In peculiar facts and circumstances of a case, while recognizing settled position of law the Court must ensure that the ends of justice are not frustrated in the process. Keeping in view the conduct of the petitioners before the Courts below, this Court expressed that in furtherance of justice, the petitioners ought to hand over possession of the suit property to the respondent No.1, subject to appropriate conditions and subject to the result of the pending proceedings - considering the position of law pertaining to explanation to Order 9 Rule 13 of the CPC, this Court finds that the impugned order cannot be sustained - Petition disposed off.
Issues Involved:
1. Whether the application for stay of proceedings in appeal should have been allowed pending the application for setting aside the ex-parte decree. 2. The conduct of the petitioners in the proceedings before the Trial Court and the Executing Court. 3. The legal implications of Order 9 Rule 13 of the Civil Procedure Code (CPC) and its explanation. Issue-wise Detailed Analysis: 1. Application for Stay of Proceedings in Appeal: The petitioners challenged an order by the Principal District and Sessions Judge, Chandrapur, which rejected their application (Exh.17) for stay of proceedings in an appeal. The petitioners argued that their application for stay should have been granted because their application under Order 9 Rule 13 of the CPC for setting aside an ex-parte decree was pending. They contended that if the appeal was disposed of, their application for setting aside the ex-parte decree would become infructuous, causing grave prejudice. The respondent opposed this, stating that the Appellate Court's refusal was justified given the petitioners' conduct and that no interference was warranted. 2. Conduct of the Petitioners: The petitioners were accused of delaying tactics throughout the proceedings. They filed their written statement late and failed to participate in the trial, leading to an ex-parte decree on 27/06/2009. They also did not appear in the execution proceedings despite being served, resulting in ex-parte proceedings against them. They only appeared before the Executing Court in 2013 to raise objections, which were rejected. Subsequently, they filed an application to set aside the ex-parte decree in 2014 and an appeal with a delay of 1970 days. The application for stay of proceedings was filed more than two years after the appeal, further delaying the respondent's enjoyment of the decree's benefits. 3. Legal Implications of Order 9 Rule 13 of the CPC: The Court recognized that under Order 9 Rule 13 of the CPC, a defendant can simultaneously file an application to set aside an ex-parte decree and an appeal against the decree. The explanation to Order 9 Rule 13 states that once an appeal against an ex-parte decree is disposed of, an application to set aside the decree cannot be entertained. The Supreme Court judgments in Rani Choudhary, Bhanu Kumar Jain, and Neerja Realtors affirmed this position. The Court found that the Appellate Court erred in rejecting the stay application, as the pending appeal's disposal would render the application to set aside the ex-parte decree infructuous, prejudicing the petitioners. Conclusion: The Court set aside the impugned order and allowed the petitioners' application for stay of proceedings in the appeal until the decision on their application to set aside the ex-parte decree. However, considering the petitioners' conduct, the Court directed them to hand over possession of the suit property to the respondent within four weeks. The respondent was to maintain an account of proceeds from the property and submit it annually to the Court. This handing over was subject to the outcome of the pending proceedings, with provisions for the respondent to seek interim relief if adverse orders were passed. Final Order: The impugned order was set aside, and the application Exh.17 was allowed, staying the proceedings in Regular Civil Appeal No. 134/2015 until the decision on the application for setting aside the ex-parte decree. The petitioners were directed to hand over possession of the suit property to the respondent within four weeks, with the respondent required to maintain and submit accounts annually. The rule was made absolute, and the writ petition was disposed of with no costs.
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