Supreme Court of India

KUMUD LATA DASversusINDU PRASAD

Citation: 1996 INSC 1076
Decided: 19 September 1996
Disposal: Appeal(s) allowed
Bench: K RAMASWAMYFAIZAN UDDING B PATTANAIK

Holding

The condition of depositing mesne profits as a precedent to execution of an ex‑parte decree is not valid and the High Court’s order imposing it is set aside.

Summary

The appellant, a daughter-in-law, was in possession of a property when her mother‑in‑law filed a suit for possession. The appellant was set ex parte and sought restoration of the decree. The Delhi High Court ordered that the appellant deposit mesne profits of Rs 2,000 per month from the date of the ex‑parte decree as a condition for execution. The Supreme Court held that imposing such a condition was onerous and not justified, especially given the familial relationship of the parties. Consequently, the High Court’s order was set aside, execution of the ex‑parte decree was stayed, and the matter was remitted to the High Court for fresh consideration of the application to set aside the decree on its merits. The appeal was allowed without costs.

Issues considered

Whether the High Court was justified in imposing a condition of depositing mesne profits from the date of an ex‑parte decree as a precedent to execution.
Whether such a condition is valid under the Code of Civil Procedure in a possession suit involving closely related parties.

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 13

Subjects

ex parte decreemesne profitspossession suitsetting aside decreeCivil Procedurefamily disputeproperty possession

Judgment

                           KUMUD LATA DAS                                         A
                                      v.
                              INDU PRASAD

                           SEPTEMBER 19, 1996

 [K. RAMASWAMY, FAIZAN UDDIN AND,G.B. PATTANAIK, JJ.)                             B

        Code of Civil Procedure, 1908 :

       Order IX Rule 13-Application for setting aside. exparte decree-Proper-
ty in possessio11 of daughter-i11-law-She could not live amicably with her        C
husband-Mother-in-law filing suit for possession on the basis of her alleged
title-Appellant was set ex-parte-Applicatio11 for restoration of decree dis-
posed of by the High Court by imposing condition of depositing mes11e profits
for the execution of the exparte decree-Not justified-Matter remitted to High
Cowt for fresh consideration of the application for setting aside the decree on
merits and i11 accorda11ce with law.                                              D
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12729 of
1996.

      From the Judgment and Order dated 16.4.96 of the Delhi High Court
in I.A. No. 8629/95 in Suit No. 3781 of 1990.                                     E
        M.N: Krishnamani and S.B. Upadhyay for the Appellant.

        AK. Ganguli, Manish Mishra for N.S. Bisht for the Respondent.

        The following Order of the Court was delivered :                          F

        Leave granted.

      This appeal by special leave arises from the order made on April 16,
1996 by the Delhi High Court in I.A. No. 8629/95 in Suit No. 3781/90. The
  suit was for possession of the property from the appellant. The plaintiff is    G
  the mother-in-law of the appellant. The appellant and her husband are not
  able to live amicably in matrimonial tie. The proceedings for divorce are
  pending._The appellant is in possession of the property and, therefore, the
  respondent-mother-in-law filed a suit for possession on the basis of her
· alleged title. The appellant was set ex parte and the applicatio1i under        H
                                      521
    522                   SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A Order 9, Rule 13 CPC is now pending before the High Court. The
    application for restoration of the decree has been disposed of with direc-
    tions to deposit and to continue to deposit mesne profits at the rate of Rs.
    2,000 per month from the date of ex-pa1te decree, Hence, this appeal by
    special leave.

B         In view of the fact that the parties are closely related and the matter
    has been disposed of ex-parte, we are of the view that it is not a fit case to
    impose costs of depositing mesne profits from the date of ex-parte decree
    and to continue to deposit it as a condition to contest the application to
    set aside ex-parte decree. Moreover, such onerous condition is not valid,
C   though discretio~ary.

          Under these circumstances, we think that the learned Single Judge
    was not right in imposing the condition of depositing the mesne profits as
    a condition precedent for execution of the ex-parte decree. The impugned
    order of the High court is accordingly set aside. There .shall be stay of
D   execution of the ex-parte decree. The matter is remitted to the High Court
    for fresh consideration of the application for setting aside the decree on
    merits and in accordance with law.

          The appeal is allowed. No costs.

E G.N.                                                           Appeal allowed.

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