# Ram Kumar and another v. Addl. District Judge, Chaundausi and others - **Citation:** (2010) 3 ILRA 987 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2010-08-06 - **Case number:** Civil Misc. Writ Petition No. 44792 of 2010 - **Bench:** Krishna Murari - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-and-another-v-addl-district-judge-chaundausi-and-others-41766 - **Pages:** 3 ## Headnote Code of Civil Procedure-Order 9 Rule 13Application for setting a side ex party Decree-on ground earlier judgment passed after hearing same of heirsrepresenting. Estate-Decree upheld by the Apex Court-held-application under order 9 Rule 13 not maintainable. Held: Para 6 In view of the law laid down by the Hon'ble Apex Court, the application filed by the petitioners under Order IX Rule 13 C.P.C. for recall of the ex parte decree on the ground that they were also the heirs of the deceased defendant, who 988 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 were not impleaded, would not be maintainable and has rightly been rejected by the two courts below. Case law discussed: AIR 1982 SC 1397, AIR 1966 SC 792, AIR 1975 SC 733. ## Text 3 All] Ram Kumar and another V. Addl. District Judge, Chandausi and others 987 consideration in dealing with the applications made under S.33C(2)." 20. The cases cited by the counsel for petitioner is decision of coordinate Bench presided over by learned single Judge whereas the ratio in Bombay Gas's case(supra) has binding effect under Art. 141 of the Constitution. 21. It may also be noted that decision in Smt. Jamuna Devi's case cited by the counsel for respondent is dated 19.9.2008 and since the matter of limitation is pending before the Supreme Court, I am of the opinion that in the facts and circumstances the question of limitation would not arise and the release application has rightly been allowed by the prescribed authority. 22. Since this Court has already heard the petitioner on merits of the judgements passed by the prescribed authority as well as revisional court, hence remanding the matter on restoration application would be a futile exercise. 23. If limitation of 12 years as reasonable period is read in the provision of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972, though there is a definite lack of legislative intent in the Act in this regard, it would amount to permitting illegal occupants to grant legal sanction to their acts. Occupation of building without allotment would frustrate the regulatory provisions of the Act and not germane to the object for which the Act was legislated. 24. It may in circumstances be also misused or misutilised e.g. if an influential powerful person or mafia occupies a building or portion thereof by force of muscle power/State power then the landlord would never be able to move any application for release for fear of him and his family. There can be other such examples also, hence in my considered opinion, limitation should not be read where it is not specifically provided for. 25. For all reasons stated above, the writ petition fails and is accordingly dismissed. No order as to costs. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 06.08.2010 BEFORE THE HON'BLE KRISHNA MURARI, J. Civil Misc. Writ Petition No. 44792 of 2010 Ram Kumar and another ...Petitioners Versus Addl. District Judge, Chaundausi and others ...Respondents Counsel for the Petitioner: Sri Vishesh Kumar Gupta Sri T.P. Bhardwaj Counsel for the Respondents: Sri Vishnu Gupta Code of Civil Procedure-Order 9 Rule 13Application for setting a side ex party Decree-on ground earlier judgment passed after hearing same of heirsrepresenting. Estate-Decree upheld by the Apex Court-held-application under order 9 Rule 13 not maintainable. Held: Para 6 In view of the law laid down by the Hon'ble Apex Court, the application filed by the petitioners under Order IX Rule 13 C.P.C. for recall of the ex parte decree on the ground that they were also the heirs of the deceased defendant, who 988 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 were not impleaded, would not be maintainable and has rightly been rejected by the two courts below. Case law discussed: AIR 1982 SC 1397, AIR 1966 SC 792, AIR 1975 SC 733. (Delivered by Hon'ble Krishna Murari, J.) 1. Shri T.P. Bharadwaj holding brief of Shri Vishesh Kumar Gupta has made a request to adjourn the case. The matter was heard at great length on 5th August, 2010. On the request made by Shri Vishesh Kumar Gupta, the matter was adjourned for after lunch session in order to enable him to look into the decision referred to in the impugned judgment reported in Rani Choudhury Vs. Lt. Col. Suraj Jit Choudhury, AIR 1982 SC 1397. However, after lunch he did not appear. The matter was posted for today and again, adjournment has been sought. Prayer made is refused. 2. The sole controversy in this case is as to whether after dismissal of appeal filed against the decree, whether an application is maintainable under Order IX Rule 13 C.P.C. The issue is clearly covered by the decision of the Hon'ble Apex Court in the case of Rani Choudhury (supra), wherein it has been held as under. "A plain reading of the Explanation clearly indicates that if any appeal against an ex parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex parte decree under Order IX Rule 13 will be entertained. The words used in the Explanation are clear and unambiguous. The language used in the Explanation clearly suggests that where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under Order IX Rule 13 for setting aside the ex parte decree." 3. In the case in hand, suit filed by the plaintiff-respondent was decreed by the trial court by means of ex parte judgment and decree dated 10.10.1980, against which First Appeal was preferred by some of the defendants, which was partly allowed on 15.07.1982. The matter came up to this Court in Second Appeal No. 2257 of 1982, which was also dismissed on 10.11.2005. The judgment and decree has been affirmed by the Hon'ble Apex Court by dismissal of the Special Leave Petition on 17.04.2006. Thereafter the petitioner moved an application under Order IX Rule 13 C.P.C. for recall of the ex parte judgment and decree on the allegation that they were also legal heirs of the deceased defendants and were not not impleaded after his death. 4. It is undisputed that the estate of the deceased defendant was duly represented by some of the heirs, who went up in appeal. Hon'ble Apex Court in the case of N.K. Mohd. Sulaiman Sahib Vs. N.C. Mohd. Ismail Saheb & Ors., AIR 1966 SC 792, in identical situations, held that the principle of representation of the estate by the heirs who were joined as parties applied to the case and the decree was binding on persons who claimed to be the sons of the deceased mortgagor and sued for a declaration that the mortgage decree was not binding on them. 5. Same view has been taken by the Hon'ble Apex Court in the case of Harihar Prasad Singh & Ors. Vs. Balmiki Prasad Singh & Ors., AIR 1975 SC 733, wherein 3 All] Gopi Kumar Singhania V. State of U.P. and others 989 it has been held that the estate of the deceased was fully represented by the heirs, who had been brought on record and these heirs represented the absent heirs also, who could be equally bound by the result. 6. In view of the law laid down by the Hon'ble Apex Court, the application filed by the petitioners under Order IX Rule 13 C.P.C. for recall of the ex parte decree on the ground that they were also the heirs of the deceased defendant, who were not impleaded, would not be maintainable and has rightly been rejected by the two courts below. 7. The writ petition being devoid of merit, stands dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 28.07.2010 BEFORE THE HON'BLE SHEO KUMAR SINGH, J. THE HON'BLE RAJESH CHANDRA, J. Civil Misc. Writ Petition No. 48664 of 2003 Gopi Kumar Singhania ...Petitioners Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri R.N. Singh Sri V.K. Singh Sri G.K. Singh Counsel for the Respondents: Sri A.K. Gaur Sri Alok Kumar Singh Sri P.S. Baghel Sri Rajeev Misra C.S.C. U.P. Public Money (Recovery of Dues) Act, 1972 or any other Act-Constitution of India Article 226-The recovery proceeding under the 1972 Act found invalid quashed by the Apex Court-The Apex Court set aside the impugned order and directed to take such action under the Act or the financial Act as is legally available. Request to restore immediately possession-held-entitled for all relief so claimed. Held: Para 32, 33 As the recovery proceedings/citation and the entire proceedings under the Act has been found to be invalid and were quashed by the Apex Court, we are of the view that the petitioners are entitled for all the reliefs so claimed in this petition. So far as the Private respondent who claims to be the auction purchaser, he is entitled to get the bid amount returned with a simple interest to be calculated at the rate of 7% from the date of deposit. Case law discussed: AIR 1970 SC 1717,AIR 1967 SC 1440, (1887) 15 Ind. App. 97, (1885) 12 Ind App. 171, (1897) 24 Ind App. 170 (PC), 2000 SC Cases Vol. 8, 395, AIR 1995 SC 1071. (Delivered by Hon'ble Sheo Kumar Singh, J.) 1. By means of the present writ petition, the petitioner has prayed for quashing tha auction proceedings conducted pursuant to the recovery certicicate and recovery citation dated 06.01.2001 and 14.04.2001 (Annexures No. 6 and 7) respectively. 2. There is further prayer for a direction to the District Collector, Varanasi(Respondent No. 2) to restore back the possession over the properties, which were illegally auctioned pursuant to the recovery certificate/citation referred above.