Code of Civil Procedure, 1908 – Or.IX, r.13 – Setting aside of ex parte decree – Suit for specific performance of agreement for sale of suit property filed by appellants on the ground that respondents-defendant nos.1 and 2 failed to complete sale transaction as per the terms of agreement despite taking the advance money from appellants and instead sold the suit properties to defendant nos.3 and 4 – Respondents remained ex parte since inception – Ex-parte decree passed against respondents jointly and severally – Defendant no.3 and 4 applied for setting aside the ex parte decree under Or.IX, r.13 – Trial court set aside the ex parte decree and restored the original suit to its file to decide the suit afresh on merits – On remand, defendant nos.1 and 2 remained ex parte – Trial court again decreed the suit against all the four defendants – Defendant nos.3 and 4 filed appeal before High Court – High Court allowed the appeal and again remanded the case to trial court for fresh trial – Whether High Court was justified in remanding the case to trial court for its denovo trial – Held: Defendant nos. 1 and 2 were entitled to a notice of the proceedings under Or.IX, r.13 in terms of local amendment made by the State of Kerala in the first proviso to Or.IX, r.13 wherein the words “after notice to them” were inserted – This local amendment made in the first proviso was applicable to defendant nos. 1 and 2 – No notice was served on defendant Nos. 1 and 2 before setting aside the ex parte decree and in their absence, the suit was restored – This was one irregularity committed by the trial court while restoring the entire suit, though it was for the benefit of defendant Nos. 1 and 2 – After the suit was restored at the instance of defendant nos. 3 and 4, the trial court committed another error inasmuch as it again did not issue fresh notice of the suit to defendant nos. 1 and 2 – In other words, defendant nos. 1 and 2 were entitled for a fresh notice of the suit once restored despite their non-appearance in the first round of trial in the suit and in Or.IX, r.13 proceedings – The two legal infirmities call for remand of the case to the trial court for fresh adjudication of the civil suit on merits in accordance with law – Specific performance – Decree – Ex-parte decree – Notice.
Dismissing the appeal, the Court
HELD: 1. The Trial Court will now issue fresh notice to defendant Nos. 1 and 2 in the suit by usual mode of service and then by substituted service, if need arises. It is only after the service of the suit is held complete on defendant Nos. 1 and 2, the Trial Court will proceed with the trial in the suit on merits. [Para 22][266-D]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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