Saraswati Decd Thru Lrs v. Sushila Rani

V.B.GUPTA, J. mw

* HIGH COURT OF DELHI : NEW DELHI CM (M) No. 1099/2010 & CM No. 15466/2010 (stay) % Judgment reserved on: 27th August, 2010 Judgment delivered on: 31st August, 2010 Smt. Saraswati (since deceased) Represented through her LRs: 1. Sh. Mahipal Singh S/o late Sh. Sohan Lal 2. Sh. Rakesh Kumar S/o late Sh. Sohan Lal Both residents of: J-15/9-A, Jai Prakash Nagar, Ghonda, Shahdara, Delhi – 110 053 ….Petitioners. Through: Mr.V.K.Khurana, Advocate. Versus Smt. Sushila Rani, W/o late Sh. Kishore Chand Gupta, R/o 336-A, Hari Nagar, Ashram, New Delhi – 110 014 ….Respondent Through: None Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Petitioners have filed present petition under Article 227 of the Constitution of India where by they have challenged order dated 1.10.2004 passed by Civil Judge, Delhi, vide which application under Order 9 Rule 13 read with Section 151 of Code of Civil Procedure (for short as "Code") moved on behalf of legal heirs of Judgment Debtor (petitioners herein), was dismissed and also order dated 6th July, 2010 vide which their appeal was dismissed by Additional Sr. Civil Judge, Delhi. 2. Brief facts of the case are that, in 1982 Smt. Sushila Rani, respondent (who was plaintiff in the trial court), filed a suit for possession against Smt. Saraswati (defendant in the trial court) since deceased. Present petitioners are the legal representatives of Smt. Saraswati. Smt. Saraswati was duly served in the suit, but she did not appear despite service and as such was proceeded ex parte. 3. Vide judgment dated 30.8.1983 passed by Sh. Z.S.Solanki, Sub-Judge-III, Delhi, suit of respondent was decreed. 4. In application under Order 9 Rule 13 of the Code, it is stated that petitioners have come to know for the first time after having received summons from the trial court in application under Order 22 Rule 4 of the Code that decree has been passed on 30th August, 1983. Thereafter, they engaged counsel who inspected the main file and it was revealed that during the course of fire that has taken place in the civil record room, file of main case has been burnt. It is alleged that deceased mother of petitioners during her life time did not receive any summon or notice from the trial court. It appears that Decree Holder has played fraud upon the Court as suit was filed in year 1982 and execution petition have been filed either beyond the period of limitation or at the fag end of limitation period. Thus, judgment and decree dated 30.8.1983, is liable to be set aside. 5. It is contended by learned counsel for petitioner that deceased Smt. Saraswati had never received any kind of summon or notice from any Court or at any point of time. Execution application was filed almost after a period of 12 years after passing of the ex parte judgment and there is a strong presumption that respondent might have manipulated the alleged service of summons on deceased Smt. Saraswati and ex parte decree has been obtained by fraud. 6. It is also contended that findings of First Appellate Court that, bailiff being a Government servant has to be believed, is against the principles of natural justice. Petitioners ought to have been given opportunity for producing evidence of process server and as such impugned orders are liable to be set aside. 7. In entire application under Order 9 Rule 13 of the Code, petitioners have no where stated as to on which date they came to know about passing of ex parte decree against deceased Smt. Saraswati. As per this application, case of petitioners is that "the legal representative of Judgment Debtor have for the first time came to know regarding passing of decree dated 30.8.1983 in Suit No.705/1982, after having received the summon from the Court in an application under Order 22 Rule 4 and Section 151 CPC." 8. Petitioners deliberately, ha