Punjab & Haryana High Court Restores Trial Court Order Dismissing Application to Set Aside Ex Parte Decree, Holds Limitation and Proper Service Fatal to Defendants’ Plea

Case Name: Kali Ram v. Shanti and Others
Date of Judgment: January 6, 2015
Citation: CR No. 6725 of 2011 (O&M)
Bench: Hon’ble Mr. Justice G.S. Sandhawalia

Held: The Punjab & Haryana High Court set aside the order of the Additional District Judge, Sonepat, and restored the trial court’s decision dismissing an application under Order 9 Rule 13 CPC to set aside an ex parte decree in a partition suit. Justice G.S. Sandhawalia held that once the defendants were duly served and had notice of proceedings, they could not seek to reopen the decree after years of inaction. The Court ruled that the application was time-barred and unsupported by any plea or proof of sufficient cause under Section 5 of the Limitation Act. It further clarified that irregularity in service cannot justify setting aside an ex parte decree when the defendants had actual notice and time to appear, and that the appellate court erred in remanding the matter merely to frame issues.

Summary: The petitioner-plaintiffs had obtained an ex parte preliminary decree for partition on December 15, 1995, followed by a final decree on August 3, 2006. The respondents filed an application on May 14, 2007, under Order 9 Rule 13 CPC to set aside the ex parte judgment, alleging lack of personal service and knowledge of the proceedings. The trial court dismissed the application as time-barred, noting that the defendants had refused to accept summons, were served by affixation and Munadi (public announcement), and that possession of plots had been delivered by the bailiff in January and April 2007, proving knowledge of the decree. The appellate court, however, remanded the matter for retrial after framing issues.

Justice Sandhawalia found the remand unjustified, observing that the record clearly showed deliberate avoidance of service and ample opportunities to appear. Relying on Sneh Gupta v. Devi Sarup (2009) 6 SCC 194 and Sunil Poddar v. Union Bank of India (2008) 2 SCC 326, the Court reiterated that an ex parte decree cannot be reopened merely on technical irregularities if the defendants were aware of the proceedings and had sufficient time to respond. It held that absence of a condonation application rendered the plea of limitation incurable and that extending limitation by invoking inherent powers under Section 151 CPC would defeat statutory finality.

Decision: The High Court allowed the revision petition, set aside the appellate order dated September 13, 2011, and restored the trial court’s order dated August 16, 2010, dismissing the defendants’ application under Order 9 Rule 13 CPC. It reaffirmed that diligence, service proof, and limitation are decisive in determining such applications, and that procedural discretion cannot override express legal timelines.