By means of this writ petition the petitioners have challenged the order of the appellate court passed under Order IX Rule 13 CPC as well as the order passed by the revisional court dated 22.8.2014.
A suit being Suit No. 949 of 2005 was filed by the petitioners for cancellation of sale deed dated 7.2.2004 alleging that Rs. 4,70,000/- was paid in cash and the remaining amount of Rs. 50,00,000/- was to be paid through various cheques that has been mentioned in the plaint.
According to the learned counsel for the petitioners, the said cheques, as mentioned in the judgment of the trial court were never tendered. Therefore, the petitioners then filed the said suit for cancellation of such sale deed.
It is submitted that the defendants put their appearance and also filed various applications but thereafter they disappeared and never appeared in the proceedings, therefore, an order to proceed ex parte was passed on 25.7.2008 fixing a date for hearing. On the date of hearing also none appeared for the defendants. Thereafter, various dates were fixed but none appeared for the defendants and ultimately the said suit was decreed ex parte on 1.12.2009. In the said decree the defendants were restrained from interfering with the possession of the petitioners and the sale deed by the aforesaid decree was cancelled. The petitioners' claim that they are in possession of the property in question.
It is submitted that after more than two years an application under Order IX Rule 13 CPC along with an application under Section 5 of the Limitation Act was filed on 1.2.2011. On the said application notices were issued and the date fixed as 23.3.2012. On that date the Presiding Officer was not available and as such, 4.5.2012 was fixed. It appears that an application was moved by the defendants for staying the decree and the date 4.5.2012 was preponed and on 28.4.2012 the case was taken up and was directed to be heard on 30.4.2012. On 30.4.2012 the date was fixed as 1.5.2012 and on which date the operation of the decree was stayed. When the petitioners came to know of the aforesaid order, they filed a revision on 10.5.2012 but the said revision has also been rejected.
According to the learned counsel for the petitioners, an ex parte decree was passed although the defendants were fully aware of the filing of the aforesaid suit but they chose not to contest the proceedings and therefore, the said suit was ultimately decreed in favour of the petitioners on 1.12.2009. After two years an application to recall the ex parte order was filed along with an application under Section 5 of the Limitation Act upon which notices were issued and date was fixed and before the date fixed, i.e., on 4.5.2012 and on 1.5.2012 the decree was stayed without even passing an order on the application under Section 5 of the Limitation Act. According to the learned counsel for the petitioners, unless the delay in filing an application under Section IX Rule 13 CPC is condoned, the said application was not maintainable and, therefore, no order on such an application could have been passed.
The matter requires consideration.
Issue notice to the respondents returnable at an early date.
Learned counsel for the petitioners will take steps for service of notice upon the respondents within a week.
List this matter after service of notice.
Till the next date of listing, the operation of the impugned order dated 1.5.2014 as well as revisional court's order dated 22.8.2014 shall remain stayed. It is further directed that the petitioners will not alienate the property in dispute nor any 3rd party interest would be created on the same till the next date of listing.
It is provided that in the meantime the learned counsel for the petitioners will also file copy of the plaint by way of supplementary affidavit.
Order Date :- 8.9.2014 SKM