NAGAMMA Vs. GURUPADAPPA

JUDGEMENT

(1.) THE revision petitions are filed against the orders passed by the Civil judge (Junior Division), Chittapur in Civil Misc. Nos. 2 of 1991 and 1 of 1991 respectively. Both these proceedings arise out of O. S. No. 5 of 1988. The petitioner filed a suit for partition and possession of the suit properties. The suit came to be decreed ex parte. The orders in the final decree proceedings was passed on 18-8-1990. During the lifetime of the defendant-Gurupadappa, he filed these petitions to set aside the ex parte decree contending that there is no service of summons on him and he 1. Certified copy received on 17-7-2002 was not aware of the proceedings in the suit and also in the final decree. Before the Trial Court, the parties have led evidence and documentary evidence is also marked. The Trial Court on consideration of oral and documentary evidence, found that there is no service of summons on gurupadappa and that sufficient cause has been shown for setting aside the ex parte decree under Order 9, Rule 13 of the CPC. Accordingly, set aside the preliminary decree and also final decree. Being aggrieved by the said orders, the present revisions are filed.

(2.) COUNSEL for the petitioner relied on the deposition of P. W. 12 in misc. case No. 1 of 1991, in the cross-examination to contend that there is admission on the part of P. W. 1 that her husband knew about the pendency of the suit filed against him. In view of such admissions, it is argued that there is an inordinate delay in filing the petition. Therefore, the explanation for the delay given by the petitioner is untenable and as such the petitions have to be dismissed.

(3.) AS against the said contentions raised by the petitioner, on going through the impugned order, I find that the Trial Court had carefully gone through the oral and documentary evidence. The summons in the case against the petitioner/defendant was served by affixture on the ground of refusal. The Court observes from the process records that there is no compliance of the provisions of Order 5, Rule 15 and Order 5, rule 19 of the CPC. Oral evidence is also let in by the petitioners. One of the panch witnesses to the refusal shara has testified to the fact that the defendant was not in station on that day. Counsel for the deceased defendant / petitioner is also examined as P. W. 3. In his evidence, he states that the deceased petitioner never gave him Vakalath to obtain the certified copies of the judgment and decree in the suit and it is only the son of the respondent who brought the Vakalath and asked him to apply for the certified copies. Accordingly, certified copies have been obtained in the name of the petitioner by the Counsel. By the ostensible material, it was contended by the respondent before the Trial Court that the petitioner had the knowledge of the proceedings and he had applied for the certified copies through Counsel. But however, on detailed scrutiny, it reveals that obtaining of certified copies in the name of petitioners have been manipulated by the son of the respondent according to the evidence Therefore, in the light of such evidence, it becomes amply clear that the deceased petitioner was not aware of proceedings and therefore, the reasons whatever stated by in the petition for setting aside the ex parte decree cannot be doubted as lacking in bona fides.