DEEPAK GUPTA,J. - (1.) "Whether, in a suit for pre-emption, an ex parte decree which is later set aside, can be termed to be the decree of the court of first instance" is the question which arises for decision in this appeal.
(2.) The undisputed facts are that one Roop Chand sold the suit land in favour of Shanti Devi, respondent No. 1 herein. Vijay Singh, appellant who was a co-sharer with Roop Chand, filed a suit for possession on the basis of right of pre-emption granted to a co-sharer under the Punjab Pre-emption Act, 1913 (for short 'the 1913 Act') on 6th November, 1989. The defendant Shanti Devi was proceeded against ex parte on 6th April, 1990. Thereafter, an ex parte decree was passed against her on 10th April, 1990. Pursuant to the decree, execution petition was filed and the appellant Vijay Kumar took possession of the suit land on 7th June, 1990.
(3.) On the same day, i.e., 7th June, 1990, Shanti Devi filed an application under Order IX Rule 13 of the Code of Civil Procedure (for short 'CPC') for setting aside the decree dated 10th April, 1990 claiming that she had not received the summons and had no knowledge of the proceedings. It was alleged that only when possession was taken on 7th June, 1990 did she become aware that the appellant Vijay Kumar had initiated some legal proceedings against her. The trial court dismissed the application filed by Shanti Devi for setting aside the ex parte decree on 4th October, 1993. Thereafter, Shanti Devi filed an appeal before the appellate court.;