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2020 (11) TMI 1064 - HC - Indian LawsApplication seeking stay of the proceedings in an appeal filed by them before the Court of Principal District and Sessions Judge - application under Order 9 Rule 13 of the Civil Procedure Code, 1906 (CPC), filed before the Trial Court for setting aside ex-parte decree was pending - HELD THAT:- A perusal of Order 9 Rule 13 of the CPC shows that it affords an opportunity to a defendant to apply to the Court for setting aside ex-parte decree by satisfying the Court that in the facts of the case, such an ex-parte decree could not have been passed. There cannot be dispute about the position of law that a defendant who has suffered an ex-parte decree can simultaneously invoke two remedies, firstly, by filing an application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC and secondly, by filing an appeal under Section 96 of the CPC. It was observed by the Hon’ble Supreme Court in the case of RANI CHOUDHURY VERSUS LT. COL. SURAJ JIT CHOUDHURY [1982 (8) TMI 217 - SUPREME COURT] that as per explanation to Order 9 Rule 13 of the CPC, after the appeal filed by the defendant against an exparte decree stood disposed of, it constituted sufficient reason for a ban on proceeding in an application for setting aside ex-parte decree filed by such aggrieved defendant - In the case of BHANU KUMAR JAIN VERSUS ARCHANA KUMAR & ANR. [2004 (12) TMI 676 - SUPREME COURT], the Hon’ble Supreme Court held that application under Order 9 Rule 13 of the CPC would not be maintainable once the Appellate Court disposes of the appeal, as the decree passed by the Trial Court merges with the order passed by the Appellate Court. It was also recognized that explanation to Order 9 Rule 13 of the CPC did not suggest that the converse was also true. A bare perusal of the aforesaid provision, along with position of law laid down and emphasized by the Hon’ble Supreme Court, would show that the petitioners in the present case were entitled in law to seek stay of proceedings in the pending appeal before the Appellate Court, while pursuing the application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC. It is clear that if the appeal proceeds and stands disposed of, the application for setting aside ex-parte decree filed by the petitioners cannot be proceeded with and it would be rendered infructuous. It is in this backdrop, that the petitioners filed the aforesaid application for stay Exh.17 before the Appellate Court on 13/02/2017 i.e. more than two years after filing the appeal and the application for setting aside of ex-parte decree. There is no dispute about the fact that in the meanwhile the respondent No.1 (plaintiff/decree holder) deposited the balance amount of consideration on 06/08/2009 i.e. immediately after the decree was passed on 27/06/2009 and that the respondent No.1 also filed draft sale deed on 03/12/2011 before the Executing Court. Thus, a period of more than ten years has elapsed and the respondent No.1 was not been able to enjoy fruits of the decree, despite the fact that the entire balance consideration was deposited more than ten years earlier. The conduct of the petitioners is evident from the aforesaid material on record. This Court is of the opinion that law must act in aid of justice. In peculiar facts and circumstances of a case, while recognizing settled position of law the Court must ensure that the ends of justice are not frustrated in the process. Keeping in view the conduct of the petitioners before the Courts below, this Court expressed that in furtherance of justice, the petitioners ought to hand over possession of the suit property to the respondent No.1, subject to appropriate conditions and subject to the result of the pending proceedings - considering the position of law pertaining to explanation to Order 9 Rule 13 of the CPC, this Court finds that the impugned order cannot be sustained - Petition disposed off.
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