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2010 DIGILAW 89 (KAR)

Kenchappa v. Yellamma

2010-01-21

RAVI MALIMATH

body2010
JUDGMENT :- O.S. No. 293 of 1990 was filed by the respondents herein seeking for partition and separate possession. The said suit came to be decreed. The petitioners filed Misc. No. 364 of 2000 under Order 9, Rule 13 of the Civil Procedure Code, 1908 seeking to set aside the ex parte decree. Misc. No. 364 of 2000 came to be dismissed. Aggrieved by the same, M.A. No. 13 of 2003 was filed under Order 43, Rule 1 of the CPC seeking to set aside the order dated 18-12-2009. By the order dated 20-6-2007 the said M.A. was rejected. Hence, the present petition. 2. Earlier to this petition, the application filed under Order 9, Rule 13 of the CPC in Misc. Appeal No. 13 of 2003 which was rejected on the ground of delay came to be questioned before this Court in Writ Petition No. 12519 of 2006. This Court by the order dated 14-2-2007 allowed the writ petition and the delay in filing the application was condoned and further the Trial Court was directed to consider M.A. No. 13 of 2003 on merits. Accordingly, the order dated 20-6-2007 was passed dismissing the appeal filed under Order 43, Rule 1 of the CPC. Aggrieved by these two orders, the L.R.s of the 2nd defendant have filed present petition. 3. Smt. Uma, learned Counsel appearing for the petitioners contends that both the orders passed by the Court below are erroneous and liable to be set aside. She contends that the petitioners may be put on terms while setting aside the order and an adequate opportunity be given to prove the case before the Trial Court. She contends that there is no adequate service of notice and hence the decree is null and void. 4. On the other hand, Sri S.V. Prakash, learned Counsel appearing for the contesting respondents defends the impugned order and submits that no interference is called for. 5. On hearing both the Counsels I’am of the considered view that the contention of the learned Counsel for the petitioners that there is no adequate service of notice is incorrect. The finding recorded by the Trial Court as well as the Appellate Court is that there is adequate service of notice in terms of law on the petitioners. 5. On hearing both the Counsels I’am of the considered view that the contention of the learned Counsel for the petitioners that there is no adequate service of notice is incorrect. The finding recorded by the Trial Court as well as the Appellate Court is that there is adequate service of notice in terms of law on the petitioners. However, even after the remand by the Hon’ble High Court, notices were sent and it was served and therefore they had the knowledge of the proceedings. Therefore, to contend that there was no adequate service of notice would be erroneous and opposed to the facts. Ex. R. 13, discloses that the summons were served on Kenchappa S/o. Ramanna in the year 1988 itself. Notwithstanding the same, when the subsequent writ petition was filed at least then the petitioners were aware of the proceedings. Therefore, to contend to the contrary that there was no adequate service of notice would be incorrect. The petitioners had adequate opportunity to make out a case and the Trial Court has considered the contentions. Even though there was delay in filing the application under Order 9, Rule 13 the said delay was condoned with the sole purpose of giving an opportunity to the petitioners. Inspite of granting adequate opportunity to the petitioners they have failed to take advantage of the same and have continued to refrain from the Court. I do not find any good reason to interfere with the well-reasoned order passed by both the Courts below. For the aforesaid reasons, the petitioner being devoid of merits is rejected. No costs.