Allowed

Ashok Kumar Sharma v. Smt.Chandrakanta @ Chandrakanti and Ors.

Chhattisgarh HC9 Sept 2013MA/443/2006

Case brief

AI extract

What is this about?

In a miscellaneous appeal under Order 43 CPC, the High Court set aside an order dismissing an application to set aside an ex-parte decree. Allowing the appeal, the court invalidated the decree due to improper service and procedure.

What did the court decide?

Order impugned and ex-parte decree dated 25.03.2004 set aside; application to set aside judgment/decree allowed; respondent to be paid Rs. 1,000 within 30 days.

Ashok Kumar Sharma Vs Smt.Chandrakanta @… — Execution and Attachment | Chhattisgarh HC (2013)

¶1

^r<br>

¶2

m^-THE HIGH COURT OF JUDICATURE AT BlLASPUT? CHHATTISGARH M,A,NO._ Ml/('7? / 2006 fS.B.)

¶3

lODelli

¶4

?' Applicant

¶5

; Ashok Kumar Shajma, Aged about 45 years, S/o Shri Churuii Lal Sharma, R/'o Ward No-12, Mahasamund, TehsU & Dist : Maliasamund(C.G.)

¶6

Versus

¶7

Respoiidents ,./fNon-Appllcantsj

¶8

1-,

¶9

Smt. Chandrakanta @ Chandrakanti 'Mpathl Aged about 52 years,

¶10

D/o Cbiuini Lal Shanaa,

¶11

R/o Ward No.12, Mahasamu-nd, Tehsil & Dist: Mahasamund-

¶12

(C.G.)

¶13

Meena Ba.i Shukla,.

¶14

Aged about 49 years,

¶15

D/o Chiinni Lal Sharma,

¶16

R/o Pondi Uparwaha (Block

¶17

Colony), TehsU - Khatgora, Dist

¶18

Korba-SC.G.)

¶19

w' y MSC. APFEAL U/0 43 RULE KDi OF CrVIL PROCEDU] CQDE,

¶20

Misc. Appeal No. 443 oF 200( Paaeloff jjy /'

¶21

HICH COURT OF CHHATTISGARH AT BILASPUR

¶22

Miscellaneous Aopeal No. 443 oF 20.06

APPELLANT Applicant

Ashok Kumar Sharma

VERSUS

RESPONDENTS SmL Chandrakanta @ Chandrakanti (Non-Applicants) Tripathi

¶27

Meena Bai Shukla

¶28

[Misc. Appeal under Order 43 Rule 1 (d) oF the Code of Civil Procedure, 1 908]

¶29

Present:

¶30

Mr. Ravindra Sharma, Advocate For the appellant.

¶31

Mr. Manoj Paranjpe, Advocate with Mr. Vikram Dixit, Advocate for the respondent No.1

¶32

None for the respondent No.2.

¶33

SB: Hon'ble Mr. T.P. Sharma.J.

¶34

ORDER i

¶35

(Passedon^09.09.2013)

¶36

Bythisappealunder0rder43 Rule 1 (d) oF the Code oF Civil Procedure, 1908 (for short 'the Code') the appellant has challenged the legality and propriety oF t'ne order dated 28.02.2006 passed by the 1st Additional District Judge, Mahasamund in MJ.C. No. 42/2004, whereby the application under Order 9 Rule 13 of the Code For setting aside ex-parte decree dated 25.03.2004 passed in Civil Suit No. 17A/2003 has been dismissed.

¶37

I have heard learned counsel For the parties and perused the order impugned.

¶38

Leamed counsel For the appellant submits that appellant was not completely yigilant and has relied upon his lawyer. His lawyer has tried his liable best to intimate him, but, unfortunately, letter written by him has been delivered to another Ashok Sharma instead of present appellant. hle was not present in the Court when the case was called oufc for hearing and when Court decided the case ex-parte, bub judgment and decree passed against the appellant has affected his substantive right: and has causea

¶39

prejudice to the appellant. Learned counsel for the appellant placed

¶40

Misc. Appeal No. 443 oF 200 Page 2 of

¶41

l:ak2&»Si:
;•,
.^i||
'-^'•^^^^-' *Ss»sy/ 'y^-

¶42

reliance in thematter oF Malkiat Singh & Anr. v. Joginder Singh & Ors. ^ [1998 SAR (Civil)] in which Hon'ble the Supreme Court has held that in case oF "no instructions" pleaded by the counsel to party, thereby in case oF exparte proceeding the party against whom ex-parte proceeding has been drawn cannot be said that he was at fault.

¶43

On the other hand, learned counsel For the respondent No.1 submits that appellant himselF is responsible For cause of therefore Court below has rightly dismissed the application For setting aside the judgment: and decree passed^{ex-parteagainst the appellant.}

¶44

As per order impugned, initially he was represented by his counsel who was pleaded "no instructions". As per order impugned, his counsel has also wrote a letter to him, but unfortunately, it has been served to another Ashok Sharma, therefore he has not appeared before the Court below.

¶45

In the present appeal, conduct oF the appellant reveal that he was not negligent, he has engaged the lawyer, he has contacted the lawyer, but unFortunately, "no instructions" has been pleaded by the lawyer and letter sent: to the appellant has been received by another person having similar name.

¶46

¶47

Considering, aforesaid Facts and in the light of Malkiat Singh &Anr. (supra) the appeal deserves to be allowed and is hereby allowed. Order impugned is hereby set aside subject to payment oF Rs.1,000/- to the respondents within in 30 days From today beFore the trial Court concerned.

¶48

Application filed beFore the trial Court For setting aside judgment and decree is hereby allowed. Judgment and decree dated 25.03.2004 passed Tn Civil Suit No. 17A/2003 by the Additional District Judge, Mahasamund is hereby set aside. Parties shall remain in attendance beFore the Court below concerned on 07.10.2013. No order as to costs.

¶49

Chandra

¶50

T.P.Sharma Judge

Ashok Kumar Sharma v. Smt.Chandrakanta @ Chandrakanti and Ors.

Case brief

What is this about?

What did the court decide?

Ashok Kumar Sharma v. Smt.Chandrakanta @ Chandrakanti and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sahodara Bai Vs Devi Pratap

Kariya Vs Sayed Aadil and Ors.

The New India Insurance Co. Vs Rajjo Bai and Anr.

Smt.Nirmala Sharma and Others Vs Dinesh Wankhede and Others

The New India Assurance Co.Ltd. Vs Saraswati Bai Chouhan and Others

Suyash Gahel Vs Smt.Manita Bai and Others