GAJANAN Vs. SARASWATI

JUDGEMENT

(1.) This appeal is filed seeking setting aside the order dated 27.11.2017 passed by the learned Principal Senior Civil Judge and CJM, Dharwad in Misc.No.4/2014 filed under order IX Rule 13 of the Code of Civil Procedure.

(2.) Heard the learned counsel appearing for the appellants and the learned counsel appearing for respondent Nos.1 to 4 and 10-12 and the counsel for respondent Nos.5 to 9.

(3.) Respondent Nos.1 to 4(plaintiffs) had filed a suit for partition in O.S.No.28/2011 on the file o f the learned Principal Senior Civil Judge and CJM, Dharwad, against the appellants and respondents 5 to 12. The said suit came to be decreed by judgment dated 04.02.2013. The appellants, who were defendants 6 to 14 have filed Misc.No.4/2014 under Order IX Rule 13 of the CPC for setting aside the judgment and decree passed in O.S. No.28/2011 on the ground that they have been placed exparte without service of summons and the plaintiffs managed to get postal endorsement as refused and they got managed the report o f the bailiff that defendants 6 to 14 are not residing in the address. The said Miscellaneous case, after contest, came to be disposed of by order dated 27.11.2017 and the petition filed by the appellants under Order IX Rule 13 of CPC came to be dismissed. The appellants were given opportunity to establish their contention in the said miscellaneous case. The appellants to establish their contention have not examined the concerned bailiff or the postal authorities. The appellants only produced their proof of residential address under Exs.P.4 to P.6. Taking into consideration the said aspect, the trial Court has dismissed the petition of the appellants. The appellants who had contended that the plaintiffs/respondents managed to get an endorsement o f the bailiff and postal authorities ought to have examined the bailiff and the postal authorities. Apart from that, the appellants have not taken any other contention for their non-appearance in the suit. Therefore, the trial Court, considering the above aspects, has rightly rejected the petition of the appellants filed under Order IX Rule 13 of CPC.