Exparte decree after transfer of case without notice – set aside

*(2018-4) PUNJAB LAW REPORTER 314 (P&H)*

Exparte decree after transfer of case  -  Transferee Court who had received the file by transfer decided to proceed ex parte against the appellant  - Parties had not been issued notice regarding the transfer of the case - Divorce decree passed - The rules of natural justice should generally be followed - In the present case, rules of natural justice seems to have been violated.

 

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  1. Decree - Does not transfer any right to the property but merely acknowledges rights already inhering in parties - If a decree were purported to effect a transfer for the first time, it still cannot take effect without a registered instrument.  (176) PLR
  2. Decree - Enforceability - Proprietary concern can be identified only through an individual who is proprietor - If the loan was contracted by the proprietor - Notwithstanding the fact that the wife will be seen in carrying on his business, there is no question of enforcement of decree against any asset standing in the name of the widow purchased in own name prior to the contracting of loan - The right of enforcement can be possible only if the purchaser wife herself is a benamidar for her husband.(181) PLR
  3. Decree - Eviction - Compromise decree - Statement - What he really said was that he would leave the premises and the statement has to be read with the recital in the proposed lease deed/rent note where he agreed its 11th recital that after the expiry of tenancy the tenant would walk out of the premises by handing over the physical and vacant possession to the landlord only - It is the intention of the tenant which is germane to the interpretation of the words - The intention was that he wished not to have the protection of the Act which was amply available to him - East Punjab Urban Rent Restriction Act 1949 (III of 1949) Section 13.       (177) PLR
  4. Decree - Execution - Dismissal in default - Restoration - Plaintiff are decree holders and their execution proceedings have been terminated resulting in undue advantage to the defendants - Execution Petition could be restored on sufficient cause being shown for non-appearance - The restoration of the dismissal of an execution petition for default comes clearly within the scope of Order 21, Rule 105 (1) read with Rule 104 Civil Procedure Code and the restoration was certainly possible under that rule - Civil Procedure Code, 1908 (V of 1908) Order 21, Rule 105(1) and 104.  (178) PLR 
  5. Decree - Exparte - Setting aside of - In a suit for specific performance, the Court had only allowed for recovery of the amount with interest and considering also the fact that the Court had exercised his discretion to allow for ex parte decree to be set aside in order that an adjudication was rendered on  merits - Imposition of entire amount of the decree makes meaningless an attempt to set aside the ex parte decree - An imposition of a term for deposit of 50% would have been  sufficient - Had ordered previously that the amount could be held in deposit for a period of 2 years - I modify the said order and the plaintiff is entitled to recover the entire amount without any security for the present(174) PLR
  6. Exparte decree after transfer of case  -  Transferee Court who had received the file by transfer decided to proceed ex parte against the appellant  - Parties had not been issued notice regarding the transfer of the case - Divorce decree passed - The rules of natural justice should generally be followed - In the present case, rules of natural justice seems to have been violated. (2018-4) PUNJAB LAW REPORTER 
  7. Decree - If there is any agreement between the parties as to how the amount to be paid in terms of the award is to be appropriated by the appellant then that arrangement irrespective of the wish of the decree-holder is to prevail - When JDs themselves have clearly spelled out as to how the amount deposited by them is to be appropriated, then the decree-holder has no say in the matter - Finding of the Executing Court that the decree holder cannot be allowed to re-appropriate the amount firstly towards interest, then towards costs and only thereafter towards the principal and that the entire payment had already been made and nothing is due, is correct on facts as also in law. (175) PLR
  8. Decree - Interest - Accumulation of interest was from the date when the trial Court had granted the decree and the only benefit which the judgment debtor would obtain from the modification is that when principal amount was finally been determined by this Court, it was to be taken that interest would be worked on such a modified principal amount up to the date when the deposit was made and if the amount was less than what was due till that day towards principal amount and interest, it would go for reduction of only the interest and whatever then remained in excess, would go for principal - That is the manner in which the decree holder has made the calculations.   (173) PLR
  9. Decree - Interest - Executing Court could not have granted interest when interest has not been granted in the judgment and decree. (174) PLR
  10. Decree - It is fundamental principle that a decree can bind only parties to the suit except in three known situations of admiralty, succession and insolvency jurisdictions - Only the said three types result in judgments in rem and in all other situations, they are judgments in personam - Grandchildren cannot have even a semblance of right during the grandmother's lifetime. (173) PLR
  11. Decree - Revision  petition has really become infructuous as it is well settled that after the decision in the main suit, all interim orders become redundant or merges in the decree. (176) PLR
  12. Decree - Satisfaction of Amount initially deposited by the State was soon after the enhancement of the compensation awarded by the first court of reference and if there had been a further enhancement by the decision of the Supreme Court and the decreeholder was attempting to recover the money by giving credit to the payments already received in such a way as operate to apply against the interest and costs first, the decree holder was competent to do so. (180) PLR