KANCHAPPA Vs. YELLAMMA

JUDGEMENT

(1.) 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 18-12-2002. 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 MA. 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.Rs 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.