w w w . L a w y e r S e r v i c e s . i n
Laldhari Mistri v/s Vijay Kumar
Civil Revision 1139 Of 2004
Decided On, 31 August 2005
At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE J.N.BHATT
For the Appearing Parties: S.S. Dwivedi, Kundan Kumar, R.S. Dwivedi, Triloki Nath Maitin, Ramadhar Singh, Advocates.
Judgment Text
J.N.BHATT, J.
(1.) This revision petition is directed against the impugned order passed by the appellate Court in Misce. Appeal No. 1 of 2002 dated 29/5/2004, an appeal against the order of the trial Court dated 11/12/2001 in Miscellaneous case No. 16 of 1994 arising out of an ex parte order and judgment dated 9/6/1987 passed in Title suit No. 14 of 1986, by invocation of the provisi
(1.) This revision petition is directed against the impugned order passed by the appellate Court in Misce. Appeal No. 1 of 2002 dated 29/5/2004, an appeal against the order of the trial Court dated 11/12/2001 in Miscellaneous case No. 16 of 1994 arising out of an ex parte order and judgment dated 9/6/1987 passed in Title suit No. 14 of 1986, by invocation of the provisi
Please Login To View The Full Judgment!
ons of Section 115 of the Code of Civil Procedure, 1908 (in short 'the Code').
(2.) The learned counsels for the parties are heard. The impugned order passed by the trial Court as well as the appellate Court are perused especially along with the provisions of Section 115 of the Code pertaining to the powers of revision as well as Order IX Rule 13 of the Code along with the second proviso.
(3.) The following dates are self eloquent:-
???? DATE
FACTS
09.06.1987
Suit for specific performance of contract to sell, against Hira
Mistri, bearing T.S. No. 14 of 1986 was decreed ex parte
19.12.1987
Rest money was deposited by the decree holder.
04.02.1988
Sale deed executed by Court.
29.12.1969
Delivery of possession effected.
06.09.1990
Hira Mistri died leaving behind Jhari, Laldhari (petitioner No.1), Sallo, and Khokhia Devi. Upendra Sharma (petitioner No.2) is the
son of Jhari Mistri.
26.02.1993
Two vakalatnamas were filed by Jhari Mistri's lawyer, Prem
Ranjan Sinha,
02.03.1993
One for inspection of T.S. No. 14 of 1986 and the other for
inspection of Execution Case No. 12 of 1987.
27.02.1993
Both the cases were inspected (Annexure-A)
02.03.1993
Series of the counter affidavit filed on behalf of the opposite party).
07.12.1994
Petition was filed by petitioner No. 1 and Jhari Mistri for
withdrawal of Money in T.S. No. 14 of 1986.
07.02.1994
Prayer refused by the Court.
01.03.1994
Petitioner No. 1 and Jhari filed petition for withdrawal of the
amount in Execution case No. 12 of 1987.
(4.) Successfully the revision could be brought against the impugned order in terms of the provisions of Section 115 of the Code provided the Court taking up such revision is satisfied that (a) the Court having passed the impugned order has exercised a jurisdiction not vested in it by law; or (b) has failed to exercise a jurisdiction so vested; or (c) has acted in the exercise of its jurisdiction illegally or with material irregularity. Again, the provisions of Order IX, Rule 13 of the Code are very important. Of course, they provide for setting aside the ex parte decrees, if the Court is satisfied that the summons was not duly served, or that the party was prevented by any sufficient cause from appearing when the suit was called on for hearing. It is also material to note that as per the second proviso of Order IX Rule 13 of the Code, no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
(5.) The aforesaid facts could not satisfy the requisite satisfaction of the Court for setting aside the ex parte decree.
(6.) The impugned order of the trial Court, affirmed by the lower appellate Court in appeal against that order could not be said to be in any way falling within the aforesaid parameter empowering this Court to exercise revisional jurisdiction under Section 115 of the Code.
(7.) In the result, the petition must fail. Accordingly the petition shall stand dismissed at this stage itself but without costs
(2.) The learned counsels for the parties are heard. The impugned order passed by the trial Court as well as the appellate Court are perused especially along with the provisions of Section 115 of the Code pertaining to the powers of revision as well as Order IX Rule 13 of the Code along with the second proviso.
(3.) The following dates are self eloquent:-
???? DATE
FACTS
09.06.1987
Suit for specific performance of contract to sell, against Hira
Mistri, bearing T.S. No. 14 of 1986 was decreed ex parte
19.12.1987
Rest money was deposited by the decree holder.
04.02.1988
Sale deed executed by Court.
29.12.1969
Delivery of possession effected.
06.09.1990
Hira Mistri died leaving behind Jhari, Laldhari (petitioner No.1), Sallo, and Khokhia Devi. Upendra Sharma (petitioner No.2) is the
son of Jhari Mistri.
26.02.1993
Two vakalatnamas were filed by Jhari Mistri's lawyer, Prem
Ranjan Sinha,
02.03.1993
One for inspection of T.S. No. 14 of 1986 and the other for
inspection of Execution Case No. 12 of 1987.
27.02.1993
Both the cases were inspected (Annexure-A)
02.03.1993
Series of the counter affidavit filed on behalf of the opposite party).
07.12.1994
Petition was filed by petitioner No. 1 and Jhari Mistri for
withdrawal of Money in T.S. No. 14 of 1986.
07.02.1994
Prayer refused by the Court.
01.03.1994
Petitioner No. 1 and Jhari filed petition for withdrawal of the
amount in Execution case No. 12 of 1987.
(4.) Successfully the revision could be brought against the impugned order in terms of the provisions of Section 115 of the Code provided the Court taking up such revision is satisfied that (a) the Court having passed the impugned order has exercised a jurisdiction not vested in it by law; or (b) has failed to exercise a jurisdiction so vested; or (c) has acted in the exercise of its jurisdiction illegally or with material irregularity. Again, the provisions of Order IX, Rule 13 of the Code are very important. Of course, they provide for setting aside the ex parte decrees, if the Court is satisfied that the summons was not duly served, or that the party was prevented by any sufficient cause from appearing when the suit was called on for hearing. It is also material to note that as per the second proviso of Order IX Rule 13 of the Code, no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
(5.) The aforesaid facts could not satisfy the requisite satisfaction of the Court for setting aside the ex parte decree.
(6.) The impugned order of the trial Court, affirmed by the lower appellate Court in appeal against that order could not be said to be in any way falling within the aforesaid parameter empowering this Court to exercise revisional jurisdiction under Section 115 of the Code.
(7.) In the result, the petition must fail. Accordingly the petition shall stand dismissed at this stage itself but without costs