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PETITIONER: KEWAL RAM

       Vs.

RESPONDENT: SMT. RAM LUBHAI & ORS. AND VICE VERSA

DATE OF JUDGMENT26/03/1987

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) OZA, G.L. (J)

CITATION:  1987 AIR 1304            1987 SCR  (2) 685  1987 SCC  (2) 344        JT 1987 (2)    16  1987 SCALE  (1)595

ACT:     Code  of Civil Procedure, 1908, Order IX 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.     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.

HEADNOTE:     One Kalu 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  regis- tered  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 Gate, London.     Smt. Ram Lubhai, minor daughter of Kalu 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 were not served.  Substi- tuted  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 proforma 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  applica- tion under Order 9, Rule 13 of C.P.C. in the Trial Court for setting aside the ex-parte decree against them on the ground that they were neither served in the Trial Court nor in  the Appellate Court. The Trial Court 786 accepted  the application and set aside the  decree  passed.

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Against  this order dated 10.1.1972, 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 around, the petition was partly allowed. The decree  against Kewal Ram was allowed to stand but was set aside against the other two. The review petition filed by Smt. Ram Lubhai  was dismissed  by the High Court. Hence the appeals  by  special leave. Dismissing the appeals, the Court,     HELD: It is well settled that when a decree of the Trial Court  is  either confirmed, modified or  reversed  but  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- late decree. 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  for- ward 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. [689G-H; 690A-B]     There  is no error of law in allowing a joint decree  to stand  against  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]

JUDGMENT: 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 Appellants in C.A. No. 15 of 1974 and Respondent in C.A. No. 1875 of 1974. 687     Rajinder  Sachhar,  K.B.  Rohtagi,  Praveen  Jain,  S.K. Dhingra  and  Baldev Atrey for the Respondents in  C.A.  No. 15/1974 and Appellant in C.A. No. 1875 of 1974.     R.B. Datar, Kailash Vasdev and Naunit Lal for Respondent No. 2 and 3. The Judgment of the Court was delivered by     KHALID,  J. These two appeals arise from the  same  suit and  can  be  disposed of by a common  Judgment.  The  facts necessary to understand the question involved in the appeals can be briefly stated as follows:     One Kalu 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  regis- tered  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 Gate,  London E-7.     Smt. Ram Lubhai, minor daughter of Kalu Ram, the vendor,

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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 fight of pre-emption  as  against  the vendees  who were strangers. Kewal 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 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 proforma 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  applica- tion under Order 9, Rule 13 of C.P.C. in the Trial Court for setting aside 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 plain- tiff  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  Trial Court set aside the entire  decree.  The Trial Court held that 688 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 10.1. 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  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 upon the  full  Bench decision of the Punjab and Haryana High Court in the case of Kartar Singh v. Jagat Singh and Ors., ILR 1971 2 Pun. & Har. 110. Hence these appeals by special leave, the earlier (C.A. 15/74)  by  Kewal Ram and the other (C.A.  1875/74)  by  the plaintiff.     The learned counsel for the plaintiff contended that the two  brothers of Kewal Ram were at all relevant times  aware of  the pendency of the suit and that the Courts below  com- mitted 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 before  the  Trial Court was incompetent  since  the  decree

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passed  by the Trial Court had merged in the  appellate  de- cree. 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 the decree in part and keep  the decree in tact in part. According to him 689 when  the decree was set aside against his two  brothers  it should have been set aside against him also.     Since  the decree in question is one based on the  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 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 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 against  those  de-               crees.  The  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.     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.     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 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- 690 late decree. 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  for- ward 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

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by the plaintiff. The appeal has to fail and is dismissed.     The  appeal by Kewal Ram is based on the plea  that  the decree  passed by the Trial Court and the  Appellate  Court, against him and his two brothers, was a joint and  indivisi- ble  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 consider  the principle settled in that decision because  it has  no  application to the facts of this  case.  Here,  the plaintiff has obtained a decree against 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 Civil Appeal No. 15 of 1974 either. This  appeal is also dismissed.     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. 691