Code of Civil Procedure, 1908 – Order IX Rule 13 – Whether, in a suit for pre-emption, an ex parte decree which is later set aside, can be termed to be the decree of the court of first instance.




September 08, 2017


Vijay Singh … Appellant(s)


Shanti Devi and Anr. …Respondent(s)


Deepak Gupta, J.

1. “Whether, in a suit for pre-emption, an ex parte decree which is later set aside, can be termed to be the decree of the court of first instance” is the question which arises for decision in this appeal.

2. The undisputed facts are that one Roop Chand sold the suit land in favour of Shanti Devi, respondent No. 1 herein. Vijay Singh, appellant who was a co-sharer with Roop Chand, filed a suit for possession on the basis of right of pre-emption granted to a co-sharer under the Punjab Pre-emption Act, 1913 (for short ‘the 1913 Act’) on 6th November, 1989. The defendant Shanti Devi was proceeded against ex parte on 6th April, 1990. Thereafter, an ex parte decree was passed against her on 10th April, 1990. Pursuant to the decree, execution petition was filed and the appellant Vijay Kumar took possession of the suit land on 7th June, 1990.

3. On the same day, i.e., 7th June, 1990, Shanti Devi filed an application under Order IX Rule 13 of the Code of Civil Procedure (for short ‘CPC’) for setting aside the decree dated 10th April, 1990 claiming that she had not received the summons and had no knowledge of the proceedings. It was alleged that only when possession was taken on 7th June, 1990 did she become aware that the appellant Vijay Kumar had initiated some legal proceedings against her. The trial court dismissed the application filed by Shanti Devi for setting aside the ex parte decree on 4th October, 1993. Thereafter, Shanti Devi filed an appeal before the appellate court.

4. In the meantime, on 17th May, 1995 the State of Haryana amended Section 15 of the 1913 Act. The net effect of this amendment was that the amendment took away the right of pre-emption of a co-sharer and the right of pre-emption was only retained with a tenant.

5. The appellate court allowed the application filed by Shanti Devi and set aside ex parte decree on 28th August, 1998. The appellant herein challenged the order of the appellate court by filing civil revision petition in the Punjab and Haryana High Court, which was dismissed on 5th November, 1999. It would be pertinent to mention that the learned Judge, while dismissing the revision petition, also observed that in view of the amendment to the 1913 Act the appellant herein had no right to pre-empt the sale of the suit land. The appellant then filed Petition for Special Leave to Appeal (Civil) No. 3488 of 2000 before this Court, which was disposed of on 10th March, 2000. This Court not only dismissed the petition but also ordered that the trial court would decide the suit afresh without being influenced by the observations on merit, made by the learned Judge of the High Court.

6. Thereafter, the suit was tried afresh and the main ground raised by Shanti Devi was that in view of the amendment made to the 1913 Act, the right of pre-emption was no longer available to the appellant. On the other hand, the appellant contended that the date of decree of the first court was 10th April, 1990 when the ex parte decree was passed and, therefore, the rights of the parties are governed by the law as it stood on that date.

7. After remand, the learned trial court dismissed the suit of the appellant on 27th November, 1999 on the ground that by virtue of amendment to the 1913 Act, the right of pre-emption stood extinguished. The appellant, thereafter, filed first appeal before the trial court, which was also dismissed. The regular second appeal also met the same fate.