C. PREMRAJ Vs. M.D. VENKATESH

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

(2.) This CRP is filed under Sec. 115 of CPC., challenging the order dtd. 12/1/2022 passed in Misc.No.7/2018 on the file of I Additional Civil Judge and JMFC., at KGF, allowing the said Misc. Petition filed under Order IX Rule 9 read with Sec. 151 of CPC, restoring Misc.No.9/2016 filed under Order IX Rule 13 of CPC on the file of I Additional Civil Judge & JMFC., KGF.

(3.) The learned counsel appearing for the petitioner would vehemently contend that the decree was passed in the year 2016 and the witness was examined on 19/4/2016. Though the respondent had filed the written statement not cross examined the witness and not participated in the proceedings. The decree was passed in the year 2016 i.e., after two years. Thereafter, Misc.No.9/2016 was filed under Order IX Rule 13 of CPC for setting aside the judgment and decree, the same came to be dismissed in the year 2018 and the petition was also filed for restoration. Learned counsel would submit that though the petition was filed under Order IX Rule 13 of CPC, no stay was obtained in respect of the judgment and decree and also the Sale Deed was executed in the year 2018. In the Execution Petition, he was participated through the Counsel and the same was not resisted and the possession was also delivered in 2019 itself. The Trial Court has committed an error in restoring Misc.No.9/2016, and only the reason assigned by the Trial Court is that he was suffering from viral fever from 14/1/2018 to 18/1/2018 and an opportunity has to be given and imposed cost of Rs.1,500.00. The very approach of the Trial Court is erroneous and not considered the material on record in a proper perspective in spite of the suit summons was served on him and represented through the Counsel and filed the written statement, not contested the matter and even in the Miscellaneous proceedings also he was not diligent in prosecuting the matter. In the Execution petition also, notice was served and represented through the counsel. He slept over for a period of almost 7 years after filing of the suit and no grounds are made out.