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2002 DIGILAW 598 (KAR)

Mallikarjuna Swamy Adhivaith Hiremath v. Gangamma

2002-09-23

N.K.PATIL

body2002
ORDER N.K. Patil, J.--This revision is directed against the order dated 14.9.2000 passed on I.A. No. VII on the file of the Principal Munsiff Tumkur in Execution No. 131 of 1990. 2. The Petitioner had filed I.A. No. VII under Order 21, Rule 58 Code of Civil Procedure before the trial Court. On 24.7.2000 the matter was adjourned on the ground that the Presiding Officer was on leave and Bench clerk has posted the matter on 14.9.2000. The case was called out on 14.7.2000, nobody represented on behalf of the Petitioner and dismissed the same for default. Feeling aggrieved by the said order, the Petitioner has presented this revision petition. 3. The principal submission canvassed by the learned Counsel for the Petitioner is that, the impugned order passed by the trial Court is contrary to the law laid down by this Court. In support of this submission, he has placed his reliance on the judgment of this Court in the case of Narasimha Karanth v. Sambanda Mudaliar wherein this Court has held that: The date to which the suit is adjourned by the Bench clerk because the presiding officer was on leave cannot be considered as a date fixed for further trial; that date is merely a date for calling the suit by the Court and fixing a date. 4. The learned Counsel for the Petitioner further contended that, if the ratio of the above cited decision is taken into consideration, the trial Court was not justified in dismissing the application for default. Further, he submitted that, in view of the order passed by the trial Court, the Petitioner has put to great hardship and if the said application is considered it will in no way prejudice the rights of the Respondents. Therefore, he prayed that the revision petition may be allowed by setting aside the impugned order passed by the trial Court. 5. I have heard the learned Counsel for both parties. On perusal of the impugned order passed by the trial Court, it is clear that, the trial Court has called the case in the morning sessions, thereafter, it was again called at 3-30 p.m. Nobody was represented for the Petitioner, I.A.VII filed under Order 21, Rule 58 Code of Civil Procedure was dismissed for default. On perusal of the impugned order passed by the trial Court, it is clear that, the trial Court has called the case in the morning sessions, thereafter, it was again called at 3-30 p.m. Nobody was represented for the Petitioner, I.A.VII filed under Order 21, Rule 58 Code of Civil Procedure was dismissed for default. As rightly pointed out by the learned Counsel for the Petitioner that, the said I.A. came up for consideration before the trial Court on 24.7.2000 the Presiding Officer was on leave and the case was adjourned to 14.9.2000. The said date was given by the Bench clerk and not by the Presiding Officer. Further, he has placed reliance on the judgment of this Court as cited supra, wherein, this Court has held that: "the date is merely a date for calling the suit by the Court and fixing the date; on the ground that the date to which the suit is adjourned by the Bench Clerk because the Presiding Officer was on leave cannot be considered as the date fixed for further trial. I find some substance in the submission made by the learned Counsel for the Petitioner. By following the ratio of the judgment of this Court as cited supra, I do not find any justification to sustain the impugned order passed by the trial Court. 6. Having regard to the factual and legal position as stated above, taking into consideration the totality of the case, the revision petition is liable to be succeed. 7. Accordingly, the revision petition is allowed. The impugned order dated 14.9.2000 passed on I.A. No. VII in Execution No. 131 of 1990 on the file of the Principal Munsiff, Tumkur is set aside. The matter stands remitted back to the trial Court, with a direction to the trial Court to consider I.A.VII and pass appropriate orders in accordance with law subject to the payment of cost of Rs.1,000/- to be payable to the Respondents-decree holder within one month from today.