Paragraph numbers below are the court’s original numbering, recovered from the source text.
13. Setting aside decree ex parte against defendants- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against C him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ~x 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. Explanation.–=-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree."
14. The aforesaid provision lays down the procedure for setting aside a decree passed ex parte. The court can set aside an ex parte decree only on two grounds – firstly, that the summons was not duly served; and secondly, that the defendant was prevented by sufficient cause from appearing when the suit was called out. Once an ex parte G decree is set aside, it basically means that the parties are relegated to the same position on which they stood before the passing of the ex-parte decree.
15. In the present case, the stand of the respondent No. 1 is that she was never served in the suit and she came to know about the proceedings only on the date when the decree was executed and the possession of the land was taken from her. On the same day itself she filed an application for setting aside the ex parte decree. This application was dismissed by the trial court. The lower appellate comt allowed the appeal filed by the respondent No. 1 herein and set aside the ex parte decree on the ground that she had not been served properly in the suit and, therefore, she had a reasonable cause for not appearing on the date on which the suit was called up.
16. In the present case. the result would be that the respondent No. I, Shanti Devi would be relegated to the position at which she was when she was proceeded against ex parte which would be the date on which the written statement was to be filed. There is no manner of doubt that the effect of setting aside an ex parte decree is to restore the parties to the position at which they were prior to the passing of the D decree and relegate them to the position on which they were when the defendant was proceeded against ex parte. The parties are restored to the position existing prior to the date the order proceeding against the defendant ex parte was passed. No authoritative pronouncement of this Court has been placed before us in this regard. However, we may refer E to the judgments passed by various High Courts in the case of Kumararu Narayanaru v. Padmanahlra Kurup Gopala Kurup~, Beera11koya Haji v. P.P. Moltammedkutty 3, Sllalt Bllarat Kumar v. Mis. Motilt1l and Bltarulal 4, Aziz Ahmed Patel v. LA. Patel 5, Mst. Laksltmi Devi v. Roo11gta & Co.6; Venkatasuhhialt v. Laks/1minarasimllt111 7, which have taken this view.
17. It would be pertinent to mention that the mere fact that the ex parte decree has been executed does not disentitle the defendant from applying under Order IX Rule 13, CPC to get the same set aside. Reference may be made to Sm. Sankarihala Dutta v. Sm. Asitt1 Bt1rani 2 AIR 1953 (TC) 426 'AIR 1986 Ker 10 'AIR 1980 Guj 50 ' 'AIR 1974 (A.P.) I 6 AIR 1962 (All.) 381 · 7 49 Mad.L.J.273 VIJAY SlNGH v. SHANTI DEVI AND ANR. (DEEPAK GUPTA, J.] Dasi and others8 and Mst. Fatima Kfzatoon v. Swamp Si11g/1 9• Once A the decree is set aside, restitution or restoration can be ordered.
18. On behalf of the appellant it has been urged that in Shyam S1111der's case (supra), this Court made no exception for ex-parte decrees while setting out the principles which have been quoted hereinabove and the ex pmte decree should be treated to be the decree of the court of first instance. That was not an issue raised before the Constitution Bench. This Court was only concerned with the issue whether the amendment to the 19 l 3 Act taking away the right of pre- emption vested in the co-sharer introduced after the decree was passed b)' the court of first instance and the effect thereof. The issue which is c raised in this case was-neither directly nor impliedly the subject matter of decision in Shyam Sundar's case (supra).
19. An ex patte decree is passed when the court believes that the defendant has been served but is not appearing in court despite service of summons. In the present case, the appellate court while setting aside the ex pa1te decree, has come to the conclusion that the defendant Shanti Devi (respondent no. 1 herein) was not served and, therefore, the court had wrongly proceeded against her ex parte. That finding has been upheld till this Court. In our view, the effect of this would be that the ex patte decree, on its being set aside, would cease to exist and become non-est. After the ex parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial court on merits shoul_d be treated as the decree of the first court. We may make it clear that we are not dealing with those cases where a case has been decided on merits and the decree is set aside by the appellate court on any other ground and the matter remanded to the trial court for decision afresh. We leave that question open.
20. Here, we are dealing with a case where the defendant was proceeded against ex parte and that order has been set aside on the ground that she has not been served and, therefore, she has been relegated to the position existing on the date she was proceeded against ex-parte, i.e., 6th April, 1990. After the amendment was introduced on l 7'h May, 1995, there was no right existing in the plaintiff to file a suit for pre- emption. Since the decree on contest was passed -on 271" November, 8 AIR 1977 Calcutta 289 9 AIR 1984 Calcutta 257 A 1999 the plaintiff had no existing right of pre-emption on that date and the suit was rightly dismissed. This decree is the only subsisting decree of the first court.
21. Shri Amarendra Sharan, learned senior counsel appearing for the appellant urged that since possession of the property was taken as B far back as 7•h June, 1990, no restitution can be ordered at this belated stage and, therefore, there is no point in upholding the decree. On the other hand, Shri Shantwanu Singh, learned counsel appearing for the respondent No. 1 has urged that this Court should exercise its power under Article 142 of the Constitution oflndia and direct that the property c be restored to the respondent No. 1, who has been litigating for many years.
22. We cannot accept either of the two submissions. The limitation for restitution under the Limitation Act is 12 years. The ex parte decree was set aside on 28'h August, 1998 and thereafter, the appellant has been litigating at various levels. lfthe appellant had obtained stay order(s) D during this period, obviously the period for which the stay was granted, would have to be excluded while calculating the period of limitation. This is not the job of this Court. It is for the executing court to decide . whether the restitution petition, if any filed, is within the limitation or not. It is only the court which passed the original decree, which can order E restitution. Restitution cannot be granted by the Supreme Court, as held in the case of State Bank of Sa11ras/1tra v. C/1itranjan Rairgnat/1 10•
23. In view of the above, we find no merit in the appeal, which is accordingly dismissed. Status quo granted vi de order dated 27..11.2006, which was directed to be continued by order dated 30.03.2009, stands F vacated. Kalpana K. Tripathy . Appeal dismissed. 10 (1980) 4 sec s16 ..