THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY

C.R.P.No.1589 of 2011

07-06-2011

M.Eswaramma.

N.Keshava Reddy and others.

Counsel for the petitioner:Smt.Neeraja Sudhakar Reddy

Counsel for the Respondent: Sri A.Ravinder Reddy

:ORDER:

The 1st respondent filed O.S.No.221 of 2000 in the Court of I Additional District Judge, Ranga Reddy District at L.B.Nagar, against the petitioner and respondents 2 to 6, for the relief of specific performance of an agreement of sale. It was pleaded that the agreement of sale was entered into on 15.02.1996 in respect of Acs.10.00 of land in survery No.43 of Yellareddyguda Village, Keesara Mandal and that in spite repeated requests, sale deed was not executed. The petitioner figured as 1st defendant in the suit, and respondents 2 to 6 i.e. defendants 2 to 6, are her children. On an application filed by the petitioner herein, respondents 7 to 18 i.e. purchasers of plots carved out of the suit schedule property from the 1st respondent were added as parties. Respondents 19 to 39 were also added as parties under similar circumstances.

The suit was decreed ex parte on 18.11.2002. The petitioner herein alone filed I.A.No.3695 of 2002 under Order IX Rule 13 C.P.C., with a prayer to set aside the ex parte decree. Through order, dated 24.01.2003, the trial Court allowed the I.A., by imposing condition that the petitioner shall deposit the costs awarded in the decree and shall pay a sum of Rs.1,000/- as costs in the I.A. to the 1st respondent. The petitioner filed C.R.P.No.732 of 2003 feeling aggrieved by the condition imposed by the trial Court, as to payment of costs in the decree, quantified at Rs.1,80,000/-. The revision was allowed on 12.04.2006. The condition as to deposit of costs in the decree was set aside.

The trial of the suit was resumed. At that stage, the petitioner filed a memo dated 01.02.2010, informing the trial Court that the notices were not issued to other defendants in the suit, after the ex parte decree was set aside. It appears that no specific order was passed on the memo. Therefore, she filed I.A.No.86 of 2011 under Section 151 C.P.C., with a prayer to issue notice to respondents 2 to 38 for resumption of the trial. The application was opposed by the 1st respondent. He pleaded that the ex parte decree was set aside, only in so far as it concerns the petitioner herein. The trial Court dismissed the I.A., through order, dated 28.01.2011. The same is challenged in this revision.

Smt.B.Neeraja Sudhakar Reddy, learned counsel for the petitioner, submits that the suit was for the relief of specific performance of an agreement of sale and the decree passed therein would be indivisible with reference to each defendant, and in that view of the matter, the ex parte decree dated 18.11.2002, is deemed to have been set aside against all the defendants, though I.A.No.3695 of 2002 was filed by the 1st defendant i.e. the petitioner alone. She contends that if the ex parte decree remains in force, vis--vis the respondents 2 to 38 and if the petitioner is required to pursue the suit, anomalous situation would come into existence, viz., that the suit survives against the petitioner but stood dismissed against other defendants. She further submits that the ex parte decree, if it is to stand against respondents 2 to 38 cannot be executed, unless the petitioner joins, and conversely, the decree even if passed on contest against the petitioner herein, cannot be executed, unless respondents 2 to 38 or at least 2 to 6 join in the execution of the sale deed. It is also her case that the character of various sale deeds that were executed in favour of defendants 7 to 38 must be decided before any specific relief can be granted to the 1st respondent. She has placed reliance upon the judgment of the Supreme Court in Bank of India vs. Mehta Brothers and others1.

Sri A.Ravinder Reddy, learned counsel for the 1st respondent, on the other hand, submits that the various contentions urged on behalf of the petitioner would have become relevant, if urged in I.A.No.3695 of 2002. He contends that knowing fully well about the legal consequences, the petitioner confined her relief in I.A.No.3695 of 2002 only to herself and it is not permissible for her to widen the scope of the order passed in the said I.A.

Initially, the suit for specific performance of an agreement of sale was filed by the 1st respondent herein against six defendants, namely the petitioner and respondents 2 to 6. It is at a later stage, that respondents 7 to 38 were added. It is not known as to whether the plaint was amended seeking any relief against respondents 2 to 38. The suit was decreed ex parte on 18.11.2002.

Though the relief claimed in the plaint was against the petitioner and respondents 2 to 6, the application to set aside the ex parte decree was filed by the petitioner alone. Accepting the version of the petitioner as to the circumstances under which she or her counsel remained absent on the specific date, the trial Court allowed I.A.No.3695 of 2002. However, it imposed a relatively onerous condition. This Court has set aside the condition through its orders in C.R.P.No.732 of 2003.

It is true that the ex parte decree was indivisible at least in so far as it operates against the petitioner and respondents 2 to 6 and by pressing into service the first proviso to Rule 13 of Order IX C.P.C., the petitioner could have insisted on setting aside the ex parte decree as a whole. The first proviso to Rule 13 of Order IX C.P.C., reads:

"Provided that where the decree is of such a nature that it cannot be set side as against such defendant only it may be set aside as against all or any of the other defendants also."

The benefit of this proviso can be extended by the Court even at the instance of one or few of many defendants, who suffered the ex parte decree. For example, if there are 10 defendants in a suit; and ex parte decree is passed against all of them; and if the decree is inseparable in its scope, it can be set aside vis--vis all the defendants, in an application filed under Rule 13 of Order IX is not by some of the defendants. However, a request for setting aside a decree, against all the defendants, must be made by those who filed the application. Unless such a prayer is made, the decree, only in so far as it concerns the petitioner, in the application, can be set aside and it would remain in force against the other defendants.

In Bank of India's case (supra), the Hon'ble Supreme Court has undertaken a detailed and comprehensive analysis of Rule 13 of Order 9 C.P.C. It was held that the relief cannot be confined only to cases where the decree is ex parte in nature and that the rule covers the cases in which the decree is on merits vis- -vis same defendants and ex parte against others. Support was taken from the language, employed in the first proviso to Order IX of Rule 13 C.P.C.

If the ratio laid down by the Supreme Court in Bank of India's case (supra) is applied to the facts of the case, the petitioner would certainly have been entitled to insist on setting aside the ex parte decree dated 18.11.2002, against all the defendants in the suit, even if no application was filed by them for that relief. The petitioner, however did not take any steps in that direction.

I.A.No.86 of 2011 was filed under Section 151 C.P.C., with a prayer to issue notice to other defendants in the suit. It is a matter of record that as on today, the ex parte decree is operating against respondents 2 to 38. If that be so, the occasion for the trial Court to issue notice to those respondents does not arise. The trial Court cannot be expected to widen the scope of the order passed in I.A.No.3695 of 2002, while dealing with an application filed under Section 151 C.P.C. If the petitioner is so advised, even now she can take steps by filing an appropriate application to get the order passed in I.A.No.3695 of 2002 made applicable to the other defendants also, by claiming the benefit under first proviso to Rule 13 of Order IX C.P.C. Since the order in I.A. was the subject-matter of a revision, application, if any, necessarily has to be filed before this Court. The trial Court was virtually helpless in acceding to the request of the petitioner, though the legal basis pleaded by her is sound.

Hence, the C.R.P. is dismissed, leaving it open to the petitioner to seek review of the order in I.A.No.3695 of 2002 as modified in C.R.P.No.732 of 2003. There shall be no order as to costs.