Case Note & Summary
The case arose from a suit for possession based on the right of pre-emption under the Punjab Pre-emption Act, 1913. The appellant, Vijay Singh, a cosharer with the vendor Roop Chand, filed the suit on 6th November, 1989, against respondent Shanti Devi, who had purchased the suit land. The defendant was proceeded ex parte and an ex parte decree was passed on 10th April, 1990. Possession was taken in execution on 7th June, 1990, which prompted the respondent to apply under Order IX Rule 13 CPC for setting aside the ex parte decree, alleging lack of notice. The trial court dismissed the application on 4th October, 1993, but the appellate court set aside the ex parte decree on 28th August, 1998. Meanwhile, the State of Haryana amended Section 15 of the 1913 Act on 17th May, 1995, extinguishing the right of pre-emption for cosharers, retaining it only for tenants. The appellant’s civil revision against the order setting aside the ex parte decree was dismissed by the High Court, which also observed that the amendment had taken away the right. A special leave petition was dismissed by the Supreme Court on 10th March, 2000, with a direction to decide the suit afresh without being influenced by the High Court’s observations on merit. After remand, the trial court dismissed the suit on 27th November, 1999, holding that the amendment had extinguished the right of pre-emption. The first appeal and second appeal were also dismissed. The legal issue before the Supreme Court was whether the ex parte decree dated 10th April, 1990, or the fresh decree dated 27th November, 1999, constituted the decree of the court of first instance for determining the pre-emptor’s right. The appellant argued that the relevant decree was the initial ex parte decree, at which time the right existed. The respondent contended that once the ex parte decree was set aside, the fresh decree became the decree of first instance, and by that date the right stood extinguished. The Court analyzed the Constitution Bench decision in Shyam Sunder v. Ram Kumar, which held that a pre-emptor must have the right on the date of sale, filing of suit, and passing of decree by the court of first instance only. The Court observed that an ex parte decree is a valid decree until set aside, but once set aside under Order IX Rule 13, the suit is restored and the decree later passed is the decree of the court of first instance. The Court reasoned that the ex parte decree ceases to operate upon being set aside, and the fresh decree made after full trial becomes the basis for determining rights. Consequently, on 27th November, 1999, the appellant no longer had a valid right of pre-emption due to the 1995 amendment. The Court thus dismissed the appeal, affirming that the suit was rightly dismissed.
Headnote
A) Property Law - Pre-emption - Right of Pre-emptor - Punjab Pre-emption Act, 1913, Section 15 - A pre-emptor must possess the right to pre-empt on the date of sale, filing of suit, and decree by court of first instance only; loss of right after decree does not affect maintainability - Held, following Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24, that the Constitution Bench laid down these principles (Paras 8-9). B) Civil Procedure - Setting Aside Ex Parte Decree - Effect on Decree of First Instance - Code of Civil Procedure, 1908, Order IX Rules 6, 13 - When an ex parte decree is set aside under Order IX Rule 13 CPC, it ceases to be a decree; the suit is restored and the decree passed afresh thereafter is the decree of the court of first instance. Held, the date of such fresh decree is relevant for determining pre-emption rights (Paras 10-13).
Issue of Consideration
Whether, in a suit for preemption, an ex parte decree which is later set aside, can be termed to be the decree of the court of first instance
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- pre-emptor must have right on date of sale
- filing and decree of first instance only
- ex parte decree once set aside ceases to exist
- fresh decree becomes decree of first instance
- right of pre-emption lost if amendment before fresh decree
- setting aside decree under Order IX Rule 13 CPC restores suit
- decree of first instance means the final decree after trial when ex parte decree is set aside
