The High Court in special leave dismissed the petitioner's prayer for expediting a suit regarding a recalled ex parte decree, noting the three-year delay. It offered no substantive relief but advised the petitioner to seek an injunction against dispossession.
No direct relief granted; petitioner advised to file injunction application in the trial court.
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Court No. - 37
Case :- MATTERS UNDER ARTICLE 227 No. - 905 of 2023
Petitioner :- Virendra Singh Respondent :- Neeru Devi Counsel for Petitioner :- Dilip Kumar Upadhyay
Hon'ble Ajit Kumar,J.
Heard Sri Dilip Kumar Upadhyay, learned counsel for the petitioner and perused the record.
The petitioner is aggrieved against the order dated 3rd October, 2019, whereby the ex parte decree for cancellation of sale deed dated 22nd November, 2016 has been recalled and the suit has been restored to its number and it is prayed that the same may be expedited.
It is submitted by learned counsel for the petitioner that petitioner is a man of feeble mind and, therefore, the suit had been rightly instituted, whereas the defendants are avoiding hearing of the suit.
However, upon perusal of the ordersheet, it transpires that the suit got ex parte decreed for want of notice under Order IX Rule 11 of Code of Civil Procedure, 1908, and accordingly, the same has been recalled.
In such above view of the matter, since the petitioner has approached this Court after a lapse of three years and, therefore, I do not find there to be any good ground to interfere with the order.
However, if the petitioner is under threat of dispossession from the suit property in question, he may seek appropriate relief by moving injunction application before the trial court and in the event any such application is filed, the same shall be considered strictly in accordance with law and shall be disposed of after giving full opportunity of hearing to the parties.
Subject to what has been observed, the matter is consigned to records.
Order Date :- 28.1.2023 Atmesh
Digitally signed by :- ATMESH KESARI High Court of Judicature at Allahabad
2 issues framed by the court
Whether the High Court ought to have interfered with the order recalling an ex parte decree for lack of notice after a lapse of three years.
What relief is available to a petitioner facing threat of dispossession from a recalled ex parte decree.
1 provisions across 1 enactments
Virendra Singh
Neeru Devi
Ajit Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
