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Exparte decree (Civil Law)

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Author : Anonymous

Posted On 16 January 2010 at 13:42

A suit was filed for specific performance of contract. The suit was decreed thrice exparte. On the basis of the last exparte decree execution petition was filed. In the meanwhile a CMA was filed against the petition to set aside the exparte decree. The appeal was dismissed. The opposite party preferred CRP against the dismissal of the CMA. On one hand he prosecuted the CRP and on the other hand he also contested the execution petition. The EP was allowed on merits and the court Also executed a sale deehalf of the J.Dr. After such execution of the sale deed the High Court allowed the CRP setting aside the exparte decree. Waht is the position of the D.Hr. in respect of the sale deed obtained?Can the D.Hr. take possession of the property on the basis of the sale deed executed by the Court? The J.Dr. has not challenged the order passed in EP. Or.43 Rule 1 CPC provides an appeal. No appeal was preferred against the contested E.P. Where does the D.Hr. stand in relation with the sale deed.


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Expert : R.R. KRISHNAA

Posted On 16 January 2010 at 14:08

Good question.

In my opinion only after the execution of the sale deed the CRP has been allowed by the High Court hence the sale deed is valid. Though CRP is in favour of the JD hence cannot enforce the order as the sale deed has already been executed. Thus the sale deed is valid. The only recourse to the JD is to challenge the order passed in EP by way of appeal.

But we may think otherwise also. The CRP order invalidates the sale deed and the parties are restored to their original status before the trial court and E.P. proceedings are closed. The sale deed executed becomes null and void and the trial court continues to try the suit.

Lets see what other experts have to say.

Author : Anonymous

Posted On 16 January 2010 at 18:19

Mr.Krishnaa .Thanks for your reply. But unfortunately you are not decisive. I am at a loss to understand as to which part of your answer should be put forth before the Court. As pointed out by you in the first part it is also my argument that the JDr having contested the E.P and allowed the E.P to remain unchallenged, can he hold on to the order passed in the revision and contend that the sale deed is null and void? Then what is fate of a contested order? Can you provide me any authority on the point?

The other point to be considered is as to whether Sec.144 CPC can come into play as a remedy for both parties? To restore status quo ante? Status quo ante in the sense that the D.Hr. should get back the expenditure incurred for registration of the sale deed and the J.Dr should be relegated to the position of the defendant and have the suit tried and disposed on merits. In such a situation who should pay the expenditure to the D.Hr. ?

Expert : R.R. KRISHNAA

Posted On 16 January 2010 at 18:41

Mr. Anonymous, I am only stating options available but I can't be concrete over the issue as I have not read the detailed orders of the case. Apart from what I stated in my earlier reply, I think there is remedy left open for DH to challenge the CRP order by way of review or by way of appeal stating that sale deed has been executed and the order passed in CRP is not valid. But if the CRP order clearly holds the knowledge of the sale deed execution while setting aside the exparte decree, then nothing can be done. Thus in my opinion the DH may file a review of the CRP order or challenge the CRP order in the next higher forum so as to sustain the order passed in the EP proceedings. Tell me why has the DH not yet challenged the CRP order yet?

Regarding your query about cost to be paid to DH as seen in the second para, I say that all costs of the proceedings shall be recovered by DH at the end of the suit proceedings. Or if the EP is closed due to the suit being taken up you can ask the EP court to direct cost payment to be made to DH due to sale deed registration.

Author : Anonymous

Posted On 16 January 2010 at 23:41

This will not solve the problem.. You may please check the latest law of the High Court of A.P. which says that the such sale deed is null and void but the option is that the money spent for registration can be recovered under from the State under SEc.144 of CPC.



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