Kumud Lata Das Vs. Indu Prasad
EmailAppeal: Civil Appeal No. 12729 of 1996
(Arising out of SLP (C) No.12464 of 1996)
(From the Judgment and Order dated 16.4.96 of the Delhi High Court in I.A. No 8629/95 in suit No. 3781 of 1990)
(Arising out of SLP (C) No.12464 of 1996)
(From the Judgment and Order dated 16.4.96 of the Delhi High Court in I.A. No 8629/95 in suit No. 3781 of 1990)
Petitioner: Kumud Lata Das
Respondent: Indu Prasad
Apeal: Civil Appeal No. 12729 of 1996
(Arising out of SLP (C) No.12464 of 1996)
(From the Judgment and Order dated 16.4.96 of the Delhi High Court in I.A. No 8629/95 in suit No. 3781 of 1990)
(Arising out of SLP (C) No.12464 of 1996)
(From the Judgment and Order dated 16.4.96 of the Delhi High Court in I.A. No 8629/95 in suit No. 3781 of 1990)
Judges: K.RAMASWAMY, FAIZAN UDDIN & G.B. PATTANAIK, JJ.
Date of Judgment: Sep 19, 1996
Appearances:
Mr.M.N. Krishnamani, Senior Advocate, Mr. S.B Upadhyay, Advocate with him for the Appellant.
Mr. A.K. Ganguli, Senior, Advocate (Manish Mishra) Advocate for Mr. N.S. Bisht, Advocate with him for the Respondent.
Head Note:
CODE OF CIVIL PROCEDURE
Order 9 – Rule 13 – Restoration of decree – Order of High Court directing appellant to deposit Rs. 2000/- per month from the date of exparte decree – Held considering the parties are closely related and ex parte order, it is not a fit case to impose costs of depositing mesne profits as a condition to con-test the application to set aside exparte decree, as such onerous condition is not valid- Order of High Court set aside and stay ordered on execution of exparte decree – Remitted to High Court for consideration.
JUDGEMENT:
O R D E R
1. Leave granted.
2. This appeal by special leave arises from the order made on April 16, 1996 by the Delhi High Court in I.A. NO 8629/95 in suit No.3781/90. The suit was for possession of the property from the appellant. The plaintiff is the mother-in-law of the appellant. The appellant and her husband are not able to live amicably in matrimonial tie. The proceedings for divorce are pending. The appellant is in possession of the property and, therefore, the respondent-mother-in-law filed a suit for possession on the basis of her alleged title. The appellant was set ex parte and the application under Order 9, Rule 13 CPC is now pending before the High Court. The application for restoration of the decree has been disposed of with direc-tions to deposit and to continue to deposit mesne profits at the rate of Rs. 2,000/- per month from the date of ex-parte decree. Hence, this appeal by special leave.
3. In view of the fact that the parties are closely related and the matter has been disposed of exparte. We are of the view that it is not a fit case to impose costs of depositing mesne profits from the date of exparte decree and to continue to deposit from the date of exparte decree and to continue to deposit it as a condition to contest the application to set aside exparte decree. Moreover, such onerous condition is not valid, trough discretionary.
4. under these circumstances, we think that the learned Single Judge was not right in imposing the condition of depositing the mesne profits as a condition precedent for execution of the exparte decree. The impugned order of the High Court is accordingly set aside. There shall be stay of execution of the exparte decree. The matter is remitted to the High Court for fresh consideration of the application for setting aside the decree on merits and in accordance with law.
5. The appeal is allowed. No costs.
1. Leave granted.
2. This appeal by special leave arises from the order made on April 16, 1996 by the Delhi High Court in I.A. NO 8629/95 in suit No.3781/90. The suit was for possession of the property from the appellant. The plaintiff is the mother-in-law of the appellant. The appellant and her husband are not able to live amicably in matrimonial tie. The proceedings for divorce are pending. The appellant is in possession of the property and, therefore, the respondent-mother-in-law filed a suit for possession on the basis of her alleged title. The appellant was set ex parte and the application under Order 9, Rule 13 CPC is now pending before the High Court. The application for restoration of the decree has been disposed of with direc-tions to deposit and to continue to deposit mesne profits at the rate of Rs. 2,000/- per month from the date of ex-parte decree. Hence, this appeal by special leave.
3. In view of the fact that the parties are closely related and the matter has been disposed of exparte. We are of the view that it is not a fit case to impose costs of depositing mesne profits from the date of exparte decree and to continue to deposit from the date of exparte decree and to continue to deposit it as a condition to contest the application to set aside exparte decree. Moreover, such onerous condition is not valid, trough discretionary.
4. under these circumstances, we think that the learned Single Judge was not right in imposing the condition of depositing the mesne profits as a condition precedent for execution of the exparte decree. The impugned order of the High Court is accordingly set aside. There shall be stay of execution of the exparte decree. The matter is remitted to the High Court for fresh consideration of the application for setting aside the decree on merits and in accordance with law.
5. The appeal is allowed. No costs.
