RohitChhaba (n/a) 17 August 2013

Cancellation of decree

‘A’ filed suit for specific performance of contract against ‘B’. ‘B’ died during suit in year 2001. In year 2002 plaintiff filed application for O.22 R.4 which was accepted by court. ‘B’ has 4 sons (say E, F, G, H) and 1 daughter (say ‘D’) where daughter lives at different place. Relationship between ‘B’ son and daughter are strained. Plaintiff ‘A’ in its application of O.22 R.4 requested court to take (E, F, G, H) on record as LR of ‘B’. E, F, G, H never appeared in court and decree of specific performance was passed ex-parte. Now execution was filed by ‘A’ against E, F, G, H (note D still not have knowledge of suit or execution). Pending execution ‘A’ transferred property to Z on the bases of decree and filed an application in execution that he is satisfied as he sold land in dispute so he does not want to contest execution. Court dismissed execution. Now daughter ‘D’ came to know about suit for specific performance and execution. What are remedies open to her?

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4 Replies

surjit singh (Assistant) 17 August 2013

Whether the name of the D (daughter) was also impleaded as legal representative, If not then she has got every to come and object your execution.

adv.raghavan (Advocate,9444674980) 17 August 2013

it was A fault that he didnot mention D in the court, and proper notice should have been given to her, whether father and daughter relation ship is strained is not court botheration, A shuld have impleaded D also, due to absence sons the case has become expartie and D have all the right to contest this expartie decree, by filing condone delay petition. how can A say EFGH are only legal heirs of B, was he in a possession of legal heir certificate at that time? A has committed perjury in the court and by all means if D contest this case and decree the case will have its logical conclusion.

RohitChhaba (n/a) 18 August 2013

Sir please tell me... What are remedies open to 'D'? Can she go for Appeal though she was not party to the suit? Or she shall go for O.9 R.13? Or to file seperate suit u/s 31 Specific relief act for cancellation if decree Or any other course open to her.

adv.raghavan (Advocate,9444674980) 18 August 2013

did A ever spoke to D about this, what is her stand? pls chk , answering ur question she has to file impleading petition and to ask court to setaside the decree in this case under O9 R13, and along with condone delay petition, the court will order notice to A in this regards, he has to defend why he left our D in the case. with regards to specific relif it up to D to take call in accordance with her advocate advice.