KEWAL RAM v. RAM LUBHAI

KEWAL RAM A _v._ SMT. RAM LUBHAI & ORS. AND VICE VERSA ·-~ MARCH 26, 1987 [V. KHALID AND G.L. OZA JJ.] B _Code_ _of Civil Procedure,_ _1908,_ _Order_ _JX_ _Rule_ _13_ _scope_ _of-_ - _)-_ _Application for setting aside an exparte decree passed by the Trial Court_ _as well as by the Appellate_ _Court-Whether an_ _application filed under_ ;..~ _Order IX Rule 13 before the Trial Court is in order._ ### _)-_ ;..~ _Order IX Rule 13 before the Trial Court is in order._ c _Joint Decree in_ _a pre-emption suit passed against three defendants_ _one contesting and the other two ex parte and unserved and confirmed_ ~ ~ _by_ _the appellate_ _court-Trial_ _Court accepting_ _an_ _application under_ _Order_ _IX Rule_ _13_ _by the unserved defendants, and setting aside the_ _decree against them only-Propriety of the order._ D One Kain Ram was the owner of 90 Kanals of land. He sold this land in favour of three brothers, Kewal Ram, Chet Ram and Kuldip Ram for a consideration of Rs.65,000 by a registered sale deed dated 1.8.1966. Kewal Ram is residing in Village Badala in Jullunder District. Chet Ram and Kuldip Ram were residing at 71, Windsor Road, Forest _<>-_ ··~ E Gate, London. Smt. Ram Lubhai, minor daughter of Kain Ram filed a suit for possession of the land on the ground that she being the daughter of the vendor had superior right of pre-emption as against the vendees who were strangers. Kewal Ram alone was served in the suit. The other two _'t_ **were not served. Substituted service was, therefore, taken for service on** them by publication in a vernacular paper. The suit was decreed on ##### 'J. ' ' F **were not served. Substituted service was, therefore, taken for service on** them by publication in a vernacular paper. The suit was decreed on ' ' 31.7.1969 against all the three defendants, ex parte against Chet Ram and Kuldeep Ram. Kewal Ram filed an appeal against this decree and judgment. He made his brothers Chet Ram and Kuldip Ram as profor ma respondents giving their village address for service. In the appeal also they were served by substituted service. The appeal was heard on G 5.1.1971 and was dismissed. ---', On 24.3.1971, Kuldip Ram and Chet Ram tiled an application under Order 9, Rule 13 ofC.P.C. in the Trial Court for setting aside the ex-parte decree against them on the ground that they were neither H served in the Trial Court nor in the Appellate Court. The Trial Court 685 686 SUPREME COURT REPORTS . (1987] 2 S.C.R. A accepted the application and set aside the decree passed. Against this ·-y~. order dated 10.1.1972, the plaintiff filed a revision petition in the High Court of Pnnjab and Haryana as C.R.P. No. 147 of 1972. The High Court felt that there was no error of jurisdiction in the order sought to be revised, but held that since Kewal Ram had contested the suit, there was no ground to set aside the decree against him. On this around, the B petition was partly allowed. The decree against Kewal Ram was allowed to stand but was set aside against the other two. The review petition ~ • tiled by Smt. Ram Lubhai was dismissed by the High Court. Hence the appeals by specialleave. ~- _ Dismissing the appeals, the Court, c HELD: It is well settled that when a decree of the Trial Court is either confirmed, modified or reversed hut the Appellate decree, except when the decree is passed without notice to the parties, the Trial Court decree gets merged in the appellate decree. But when the decree is passed without notice to a party, that decree will not, in law, be a decree D to which he is a party. Equally so in the case of an appellate d.ecree. In **this case these two persons were not served** **in** **the suit. A decree was** passed ex-parte against them without giving them notice of the suit. In law, therefore, there is no decree against them. In the appeal also they were not served. If they had been served in the appeal, things would have been different. They could have put forward their case in appeal E and got appropriate orders passed. But that is not the case here. That being so, there is no bar for an application by them before the Trial Court under Order IX, Rule 13, to set aside the ex-parte decree against them. [689G-H; 690A-B] There is no error of law in allowing a joint decree to stand against,\ • F the person who contested throughout while setting aside the ex-parte decree passed against others without serving them personally on admitting the application under Order IX Rule 13 C.P.C. [690C] G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15 of 1974. From the Judgment and order dated 24. 1.1973 of the Punjab and Haryana High Court in Civil Revision No. 147/72. A.B. Rohtagi, A. Minocha and Mrs. V. Minocha for the AppelH !ants in C.A. No. 15 of 1974 and Respondent in C.A. No. 1875 of 1974. KEWAL RAM _v._ RAM LUBHAI (KHALID,J.] 687 #### ... ..,,,. Rajinder Sachhar, K.B. Rohtagi, Praveen Jain, S.K. Dhingra A \, 8.nd Baldev Atrey for the Respondents in C.A. No. 15/1974 and Appellant in C.A. No. 1875 of 1974. R.B. Da.tar, Kailash Vasdev and Naunit Lal f?r Respondent No. 2 and 3. B r _)-_ The Judgment of the Court was delivered by I **KHALID, J.** These two appeals arise from the same suit and can ~ be disposed of by a common Judgment. The facts necessary to under## stand the question involved in the appeals can be briefly stated as follows: c ;.. One Kalu Ram was the owner of 90 kanals of land. He sold this ###### **-i** land in favour of three brothers, Kewal Ram, Chet Ram and Kuldip Ram for a consideration of Rs.65,000 by a registered sale deed dated 1-8-1966. Kewal Ram is residing in Village Badala in Jullunder District. Chet Ram and Kuldip Ram were residing at 71, Windsor, Road, D Forest Gate, London E-.7. _:>_ **·y** Smt. Ram Lubhai, minor daughter of Kalu Ram, the vendor, **·y** filed a suit, from which these appeals arise, for possession of the land on the ground that she being the daughter of the vendor had superior right of pre-emption as against the vendees who were strangers. Kewal E Ram alone was served in the suit. The other two were not served. Substituted service was, therefore, taken for service on them by publication in a vernacular paper. The suit was decreed on 31-7-1969 I against all the three defendants, ex-parte against Chet Ram and # .. I against all the three defendants, ex-parte against Chet Ram and ~)_ Kuldeep Ram. Kewal Ram filed an appeal against this decree and Judgment. He made his brothers Chet Ram and Kuldip Ram as pro- F forma respondents giving their village address for service. In the appeal also they were served by substituted service. The appeal was heard on 5-1.1971 and was dismissed. ·---< On 24-3-1971, Kuldip Ram and Chet Ram filed an application under Order 9, Rule 13 of C.P.C. in the Trial Court for setting aside G the ex-parte decree against them on the ground that they were neither served in the Trial Court nor in the Appellate Court. This application was resisted by the plaintiff on the ground that the application before the Trial Court was incompetent since the decree had merged in the appellate decree. Evidence was taken and after hearing the parties the **H** Trial Court set aside the entire decree. The Trial Court held that A B c 688 SUPREME COURT REPORTS [1987] 2 S.C.R. Kuldip Ram and Chet Ram were residing in England and no attempt was made to serve them personally. That being so, the application was competent in the Trial Court as they were neither served in the Trial Court nor in the Appellate Court. Against this order dated 10. J .1972, the plaintiff filed a revision petition in the High Court of Punjab and Haryana as C.R.P. No. 147 of 1972. The High Court felt that there was no error of jurisdiction in the order sought to be revised, but held that since Kewal Ram had contested the suit, there was no ground to set aside the decree against him. On this ground, the petition was partly allowed. The decree against Kewal Ram was allowed to stand but was set aside against the other two. Not being satisfied with this order, the plaintiff filed an application for review on the ground.that the decree for possession by way of pre-emption was joint against all the defendants, that there was neither specification of the shares in the land for the three different D vendees not specification of the purchase price paid by them and that as such the order setting aside the decree in part was bad. For this purpose reliance was placed on a full Bench decision of the Lahore High Court, reported in AIR 1945 Lahore 184. Reliance was also placed on the proviso to Order 9, Rule 13 C.P.C. This review petition was dismissed by the High Court by order dated May 30, 1973, relying E upon the full Bench decision of the Pun jab and Haryana High Court in the case of _Kartar Singh_ v. _Jagat Singh and Ors.,_ !LR 1971 2 Pun. & Har. 110. Hence these appeals by special leave, the earlier (C.A. 15174) by Kewal Ram and the other (C.A. 1875174) by the plaintiff. The learned counsel for the plaintiff contend~d that the two :i.., F brothers of Kewal Ram were at all relevant times aware of the pendency of the suit and that the Courts below committed an error in setting aside the decree against them. To reinforce this contention, he brought to our notice the fact that even in the appeal filed by Kewal Ram, the address given of his brothers was the village address. He further submitted that the application under Order 9, Rule 13 made G before the Trial Court was incompetent since the decree passed by the ),.. Trial Court had merged in the appellate decree. He feebly put forward a case of complicity between the two brothers to defeat the plaintiff. Kewal Ram who is the appellant in the other appeal contended that the decree was a joint decree and it was impermissible to set aside H the decree in part and keep the decree in tact in part. According to him -...; ## .. \ "" ~), --1 KEWAL RAM _v._ RAM LUBHAI [KHALID,J.] 689 when the decree was set aside against his two brothers it should have A been set aside against him also. Since the decree in question is one based on ihe right of preemption it would have been possible for us to get rid of it and dispose of the appeals by ·a short Judgment relying upon the Constitution Bench decision of this Court in _Atam Prakash_ v. _State of Haryana and_ B _Ors.,_ [1986] 2 SCC 249 by which decision the Punjab Pre-emption Act, 1913 was struck down except to a small extent. But that course is not open to us in view of the following observation by this Court in the above said Judgment: "We are told that in some cases suits are pending in various c courts and, where decrees have been passed, appeals are pending in appellate courts. Such suits and appeals will now be disposed of in accordance with the declaration granted by us. We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed ag~inst those decrees. The D decrees will be binding inter partes and the declaration granted by us will be of no avail to the parties thereto." Since the decree has become final, the principle of the decision is not attracted in this case. E That takes us to the question, whether the application under Order IX, Rule 13 before the Trial Court, when the matter had been decided by the appellate court, is proper. We proceed on the finding that neither Kuldip Ram nor Chet Ram was served either in the suit or in the appeal. F A feeble contention was put forward that fraud was practised upon these two persons in not getting service effected on them. We do not propose to consider this aspect of the case since this case was not properly pleaded or proved. For the purpose of this Judgment, we accept the Conclusions arrived at by the court below that these two persons were not served either in the suit or in the appeal. If so, what G is the position. It is well settled that when a decree of the Trial Court is either confirmed, modified or reversed by the Appellate decree, except when the decree is passed without notice to the parties, the Trial Court decree gets merged in the appellate decree. But when the decree is passed without notice to a party, that decree will not, in law, be a decree to which he is a party. Equally so in the case of an appel- H 690 SUPREME COURT REPORTS [1987] 2 S.C.R. A late decree. In this case these two persons were not served in the suit. _y-<_ A decree was passed ex-parte against them without giving them notice of the suit. In law, therefore, there is no decree against them. In. the appeal also they were not served. If they had been served in the appeal, things would have been different. They could have put forward B [their case in appeal and got appropriate orders passed. But that ][is ][not ] the case here. That being so, there is no bar for an application by them ##### before the Trial Court under Order IX, Rule 13, to set aside the -{ [. ] ex-parte decree against them. This is the only point that arises in the appeal filed by the plaintiff. The appeal has to fail and is dismissed. - ""' ' [... ] The appeal by Kewal Ram is based on the plea that the decree c [passed ][by ][the Trial Court and the Appellate Court, against him and his ] two brothers, was a joint and indivisible decree and as such the decree ).: cannot be set aside in part, by allowing the application under Order IX, Rule 13. He pressed into service a full Bench decision of the Lahore High Court, reported in 1945 Lahore 184. We do not pause to D [consider the principle settled ][in ][that decision because it has ][no ][applica-] tion to the facts of this .case. Here, the plaintiff has obtained a decree agairist Kewal Ram, based on the right of pre-emption. That decree has to stand, so far as Kewal Ram's right in the property is concerned. She will have to work out here remedies either in execution or by a partition suit to get her share in the properties. There is no merit in _'i_ ~ Civil Appeal No. 15 of 1974 either. This appeal is also dismissed. E The plaintiff will be entitled to get back two-thirds share of the amount of consideration paid for the property, from Kuldip Ram and Chet Ram. The parties are directed to bear their costs. _:.(_ ( S.R. Appeals dismissed.,\_,