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2015 DIGILAW 1131 (KAR)

Gundappa v. Sha Motilal

2015-09-28

A.V.CHANDRASHEKARA

body2015
ORDER : A.V. Chandrashekara, J. 1. Heard the learned Counsel for the parties. Petitioner was the sole defendant in an original suit in O.S. 111/06, a suit which was pending before the Senior Civil Judge, Muddebihal, Bijapur. The said suit had been filed by the respondent herein for the recovery of Rs.1,48,500/-. The said suit was dismissed ex parte as against which a regular appeal was filed by the plaintiff in R.A. 148/08 before the District Court, Bijapur. In the said appeal, notice to this petitioner was dispensed with on the ground that he had been placed ex parte before the trial Court in terms of Order XLI, Rule 14, C.P.C. (Karnataka Amendment). 2. The said appeal, R.A. 148/08 was decreed on 18.7.2011 and thereby the order dismissing the suit vide considered order dated 20.9.2008 was set aside and consequently the suit was decreed. Later on this petitioner chose to file a petition under Order IX, Rule 13, C.P.C. before the appellate Court requesting to set aside the judgment and decree passed against him by the first appellate Court. The said petition came to be dismissed on 4.9.2013 in Civil Misc. 21/13. It is this order which is called in question in this petition on various grounds as set out in the petition. 3. Learned Counsel for the plaintiff (respondent herein), Mr. D.P. Ambekar has brought to the notice of this Court a decision rendered in the case of Kewal Ram v. Smt. Ram Lubhai & Others ( AIR 1987 SC 1304 ). In paragraph 10, the Hon'ble Apex Court has observed that when the decree of the trial Court is either confirmed or modified or reversed, except when the decree is passed without notice to the parties, the trial Court decree gets merged with the appellate Court decree. In the present case, the decree passed by the first appellate Court has merged with that of the trial Court and therefore nothing prevents this petitioner from invoking the provisions of Order IX, Rule 13, C.P.C. 4. For better appreciation of the facts of this case and the law laid down by the Hon'ble Apex Court, paragraph 10 of the judgment in the case of Kewal Ram (supra) is reproduced below: "A feeble contention was put forward that fraud was practised upon these two persons in not getting service effected on them. For better appreciation of the facts of this case and the law laid down by the Hon'ble Apex Court, paragraph 10 of the judgment in the case of Kewal Ram (supra) is reproduced below: "A feeble contention was put forward that fraud was practised upon these two persons in not getting service effected on them. We do not propose to consider this aspect of the case since this case was not properly pleaded nor proved. For the purpose of this judgment, we accept the conclusions arrived at by the Court below that these two persons were not served either in the suit or in the appeal. If so, what is the position. It is well settled that when a decree of the trial Court is either confirmed, modified or reversed by the appellate decree, except when the decree is passed without notice to the parties, the trial Court decree gets merged in the appellate decree. But when the decree is passed without notice to a party, that decree will not, in law, be a decree to which he is a party. Equally so in the case of an appellate decree. In this case these two persons were not served in the suit. A decree was passed ex parte against them without giving them notice of the suit. In law, therefore there is no decree against them. In the appeal also they were not served. If they had been served in the appeal, things would have been different. They could have put forward their case in appeal and got appropriate orders passed. But that is not the case here. That being so, there is no bar for an application by them before the trial Court under Order IX, Rule 13 to set aside the ex parte decree against them. This is the only point that arises in the appeal filed by the plaintiff. The appeal has to fail and is dismissed." Accordingly there are no merits in the present petition. In the result, the following order is passed: ORDER The petition is disposed of granting liberty to this petitioner to avail the benefit of Order IX, Rule 13, C.P.C. as per the decision rendered in the case of Kewal Ram mentioned supra.