Vijay Kumar v. Shanti Devi & Anr.
Background
Vijay Kumar, a co-sharer, sued for possession of land sold by Roop Chand to Shanti Devi, claiming a statutory right of pre-emption as a co-sharer under the 1913 Act; an ex-parte decree was passed in his favour in 1990 and he took possession. Shanti Devi later got that ex-parte decree set aside on the ground she was never served, and in the meantime, in 1995, Haryana amended the law to abolish a co-sharer's right of pre-emption (retaining it only for tenants). When the case was finally decided on merits in 1999, after the amendment had taken effect, the suit was dismissed because the pre-emption right no longer existed.
Decision Breakdown
The central legal question was whether, once an ex-parte decree is set aside, the subsequent decree on merits (decided after the law changed) should be treated as the "decree of the court of first instance." The Supreme Court held that once an ex-parte decree is set aside, it becomes non-existent in the eyes of law, and the party is relegated back to the position as if that decree never happened, so the only subsisting decree is the one later passed on contest, which correctly applied the law as it stood on the date of that decision (after the right of pre-emption had been abolished for co-sharers). The Court also rejected both sides' secondary arguments: it declined the appellant's plea that no restitution of possession should be ordered given the delay, and equally declined the respondent's request to use the Supreme Court's special constitutional power (Article 142) to order immediate restoration of the property, holding that only the court which passed the original decree can decide restitution and questions of limitation for it. The appeal was accordingly dismissed, and the earlier status quo order protecting the appellant's possession was vacated.
Lesson Learnt
If an ex-parte judgment in your favour is later set aside because the other side was never properly served, you lose the benefit of that earlier decree entirely: the case is decided afresh under whatever law applies at the time of the final hearing, even if that law has since changed to your disadvantage.