Summary
An ex parte pre-emption decree set aside for non-service ceased to exist and could not preserve the claimant’s right as at its former date. The later contested decree was the subsisting decree of the first court; by then Haryana’s amendment had removed co-sharers’ pre-emption rights. The Court dismissed the appeal and left restitution and its limitation to the competent executing court.
Issues
- Whether a set-aside ex parte decree fixed the relevant date for subsistence of a pre-emption right.
- Whether execution of that decree prevented setting it aside or later restitution.
Provisions considered
- Order IX Rules 6 and 13, Code of Civil Procedure, 1908The reproduced provisions governed ex parte proceedings and setting aside for non-service or sufficient cause; setting aside restored the parties to their earlier procedural position. (¶ 11–17)
Held
- Under Shyam Sunder, a pre-emptor must retain the right on the dates of sale, suit and the first court’s decree. That authority did not decide the effect of an ex parte decree later set aside for non-service. (¶¶ 8–10, 18)
- An ex parte decree is binding while it subsists. Once set aside here for non-service, it became non-existent, and the parties returned to the position before the ex parte order. Execution did not bar an application to set it aside. (¶¶ 12, 14–19)
- The contested decree of 27 November 1999 was the relevant subsisting first-court decree. Since the 1995 amendment had removed co-sharer pre-emption before then, the suit was rightly dismissed. The effect of remand after a decree originally decided on merits was expressly left open. (¶ 19–20)
- Restitution and whether any application met the stated 12-year limitation, allowing exclusion of periods covered by stays, were matters for the executing court rather than determination in this appeal. The Supreme Court declined to order restitution itself. (¶ 21–22)
Result
Appeal dismissed; interim status quo vacated. Restitution and limitation left to the competent executing court.