decree set aside
rajvinder singh
(Querist) 20 January 2010
This query is : Resolved
a suit was filed by plaintiff for of permanent injunction restraining the defendant to construct the roof/projection and decree was passed in his favour.
the suit was against the father and his four sons.the father on appeared as defendant no.1 and others didnot appear before the court.now what happend the sons were not proceede exparte.the father was not the attorney of his sons.during the evidence of defendant the father died and the evidence of him was closed by order of court.then the decree was passed in favour of plaintiff.
now we want to challenge the decree can it be challenged or we should file application to corect the proceeding u/s 153
pls repl
R.R. KRISHNAA
(Expert) 20 January 2010
Even though the sons were not set exparte in the proceedings, a valid decree has been passed by the court, which, first must be set aside. Hence the sons (defendants) should file an application to set aside the deemed exparte decree and contest with the plaitniff.
Or else an application under section 151 can be filed before the court to rectify the error that has occured and seek the court's intervention to do justice to the sons (defendants) as they have been ignored in the suit proceedings and the suit being decreed in favour of the plaintiff without first setting them exparte.
Devajyoti Barman
(Expert) 20 January 2010
First remember that in the presence of a specific provision of law, the inherent power of the court u/s 151 of Cpc can not be invoked.Similarly in the present circumstances Sec 153 does not apply either.
If an ex-parte decree is passed then the defendant can either file petition u/o 9 r 13 of CPC or prefer appeal.However the aggrieved defendants can not explore both the options.In the light of established judicial precedents the ex-parte decree should be set aside.
rajvinder singh
(Querist) 20 January 2010
whether where the sons who didnot appear before court the decree passed against them can be set aside ex partly
rajvinder singh
(Querist) 20 January 2010
as the court has written in the judgement that advocate appears on behalf of defendants
Devajyoti Barman
(Expert) 20 January 2010
If the court says that advocate appeared on behalf of the defendants then how you could claim the decree to be ex parte.
rajvinder singh
(Querist) 20 January 2010
ya that is my point no poa is filed by sons.they were out of country at that time.
rajvinder singh
(Querist) 20 January 2010
its the error of the court how it can be corrected
rajvinder singh
(Querist) 20 January 2010
moreover the ws is not signed by any 1
adv. rajeev ( rajoo )
(Expert) 21 January 2010
Mr. Singh.
During the pendency of the suit father dies, whether his LRs. had brouht on record is not clear in your question. LRs. i.e., sons are already on record what's about his wife, whether she was on record or not?
You said that sons didn't appear so they placed as exparte.
It is not the mistake of the court to use as advocate for defendants in its judgements, some times it has happens, it is typographical error.
Instead of thinking of sec 153, which is not at all applicable your case, within the limitation period you file an appeal.
If WS is not signed by the defendant No:1 I think it might have been filed by the advocate himself on behalf of his client.
Guest
(Expert) 21 January 2010
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Raj Kumar Makkad
(Expert) 21 January 2010
I do agree with the common opinion of all experts.
