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Criminal Procedure Code QUESTION #9519
Question 1
A plaintiff A obtains an ex parte decree against B for delivery of immoveable property. B applies under Order IX Rule 13 to set aside the ex parte decree on the ground that summons was not duly served. The Court sets aside the decree. A contends that acts done in furtherance of the ex parte decree (including possession taken by A) should not be disturbed. What is the correct position?
  • On setting aside the ex parte decree, the Court has power to order restitution under Section 144 CPC; A must restore the property to B since restitution is the logical consequence of setting aside the decree✔️
  • B gets no restitution until fresh proceedings are completed
  • The setting aside operates only prospectively, not retrospectively
  • A retains possession since the ex parte decree, once acted upon, cannot be reversed
Correct Answer Explanation
Section 144 CPC provides for restitution: where a decree or order has been varied or reversed in any appeal, review, or other proceeding, the Court which passed the decree shall cause the party to be restored to the position he would have occupied had the decree or order not been passed. On setting aside the ex parte decree, A must restore possession to B.