DHANAMMA Vs. KAMALAMMA

JUDGEMENT

(1.) On 23-2-1991, the respondent Kamalamma filed an application under Order XXII, Rule 9 of CPC requesting the trial Court to set aside the Order of abatement passed in O.S. No. 801 of 1981, contending that she came in possession of the suit property by usufructory mortgage deed dated 26-2-1973. The said application was opposed by the learned counsel for the respondents contending that the respondent has perfected his title over the property by way of adverse possession. It was also objected by the petitioners herein contending that

(2.) The trial Court after taking into consideration the rival contentions of both sides,came to the conclusion that the cause shown by the applicant/respondent to file an application for setting aside abatement and reasons given in the Interlocutory Application filed under Section 5 of the Limitation Act seeking condonation of delay in filing applications, establish that the applicant has made out a sufficient cause for her non-approaching the Court well in time for the relief to set aside the abatement. Regarding the delay, it said that the reason'given by the applicant-respondent as reasonable hence accepted. Consequently, it held that the application filed by the applicant-respondent as maintainable.

(3.) Challenging the same the objectors/petitioners have preferred this revisionpetition, contending that the persons like the mortgagee cannot seek for setting aside the abatement and for permitting them to come on record as mortgagee. Learned counsel relied on a decision reported in AIR 1979 Allahabad 345. While explaining the scope of Order XXII, Rules 3 and 10, it is held that such an application cannot be allowed. Sri Ramakrishna, learned counsel for the petitioners/objectors also relied upon a decision reported in 1976 Madras 368 in support of his contention that the application of the respondent cannot be entertained. On the same point, he further relied upon another decision reported in 1973 HP 44. Sri Ramakrishna contended that the approach of the trial Court in disposing of the application filed by the respondent under Order XXII, Rule 9 of the Code of Civil Procedure; that there was sufficient cause in not approaching the Court well in time; and its finding that such an application as maintainable, etc., as not correct; and for these reasons, he submitted that the CRP be allowed