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Tulsi Singh v. Special Judge (E.C. Act)/ Addl. District Judge And Ors - WRIT - C No. - 1387 of 1999 [2007] RD-AH 15278 (10 September 2007)

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(Judgment reserved on 20.08.2007)

(Judgment delivered on 10.09.2007)

Civil Misc. Writ Petition No.1387 of 1999

Tulsi Singh Vs. Special Judge (E.C. Act)/ Additional District Judge, Etah and others

Hon'ble S.U. Khan, J.

In spite of sufficient service, respondent No.3 did not engage any counsel, hence only the arguments of learned counsel for the petitioner were heard.

O.S. No.55 of 1986 instituted by petitioner plaintiff against respondent No.3, Smt. Malti Devi was decreed ex parte on 17.08.1987 by First Additional Civil Judge, Etah. Through the said decree share of both, plaintiff and defendant, was determined to be half each. Thereafter, application for preparation of final decree was filed by the plaintiff decree-holder. The Court appointed Amin to prepare the Kurras (lots). Amin submitted report on 21.12.1988. Objections were invited against the said report. Respondent No.3 on 18.05.1991 sought adjournment, which was granted. It appears that on 23.05.1991, defendant again sought adjournment, however Additional Civil Judge, Senior Division, Etah rejected the adjournment application and confirmed the Amin's report and directed for preparation of final decree. By the last sentence of the order, plaintiff was directed to deposit the stamps within seven days (so that final decree could be engrossed thereupon). Thereafter, it appears that final decree was prepared on 13.08.1991. Thereafter on 20.08.1991 defendant respondent No.3 filed an application for restoration. The prayer in the said application was that the final decree dated 23.05.1991 be set aside. The application was accompanied by delay condonation application. Applications were allowed by Additional Civil Judge, Etah on 28.09.1992 (restoration application had been registered as Misc. Case No.29 of 1991, Malti Devi Vs. Tulsi Singh). Application was allowed on payment of Rs.500/- cost and ex parte final decree dated 23.05.1991 was set aside. Against the said order, Civil Revision No.100 of 1992 was filed, which was dismissed on 15.09.1998 by A.D.J./ Special Judge, E.C. Act, Etah, hence this writ petition.

Both the courts below found that the cause of absence and cause of delay mentioned by defendant respondent No.3 was sufficient. I do not find any error in the said findings. Moreover, normally if discretion has been exercised and ex parte decree has been set aside by courts below, interference is not called for in exercise of writ jurisdiction.

However, learned counsel for the petitioner has vehemently argued that the restoration application was highly defective as it had sought setting aside of the order dated 23.05.1991, while, in fact, final decree was passed on 13.08.1991 and no prayer for setting aside the order dated 13.08.1991 was made. I do not agree with this contention. Final decree was in fact passed on 23.05.1991 as Kurras prepared by Amin were accepted and plaintiff was directed to supply stamps so that final decree could engrossed upon stamp paper supplied by the plaintiff. Decree became enforceable from 23.05.1991, even though it became executable w.e.f. 13.08.1991 vide AIR 2001 SC 3404 "Hameed Joharan v. Abdul Salam."

Accordingly, there is no merit in this writ petition, hence it is dismissed.

Date: 10.09.2007



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