GOPALAKRISHNA HOLLA Vs. NARASIMHA BHAT

JUDGEMENT

(1.) The order of the learned Munsiff setting aside the decree afterits execution/satisfaction is in challenge in this revision. Brief facts of this case are as follows:

(2.) Petitioners herein had filed a suit in O.S. No. 56 of 1975 in the Court of the Additional Munsiff, Puttur, seeking the relief of declaration and possession. The llth defendant claimed tenancy rights in the suit lands under the provisions of the Karnataka Land Reforms Act, 1961 ('the Act' for short). The issue of tenancy was referred to the Land Tribunal, Puttur, for its decision and further trial of the suit was stayed, pending decision of the Tribunal. The Tribunal granted occupancy rights to the 1st respondent i.e., llth defendant in respect of only one survey number, but rejected his claim in respect of two other survey numbers. The plaintiffs and the llth defendant preferred appeals before the Karnataka Land Reforms Appellate Authority. After its abolition, the appeals stood transferred to the High Court and they were registered as Civil Petitions. As the decision of the Tribunal was not received by the Civil Court, the said suit was adjourned from 2-1-1982 to 30-6-1982. However, the order of the Tribunal was received by the Court in the month of February, 1982. The mischief appears to have occurred thereafter. The plaintiffs-petitioners had filed an application to advance the case from 30-6-1982 to 25-2-1982 without notice to the llth defendant or his Counsel. It may be noticed here that llth defendant was the only contesting defendant in the suit. An application LA. 5 under Order 6, Rule 17, C.P.C. for amendment of the plaint was filed by the plaintiffs. Without serving notice to the llth defendant or his Counsel, the said application was posted for hearing on 18-3-1982, on which day, the amendment application was allowed. The suit was posted thereafter to 31-3-1982 and 16-4-1982. On 7-4-1982, plaintiffs had filed another application to advance/prepone the case from 16-4-1982 to 7-4-1982. The case was advanced to 7-4-1982 without notice to the other side. On the same day, two witnesses were examined and some documents were marked by the plaintiffs and the case was closed on their side. Since the defendants were absent, the Trial Court reserved the case for judgment to the next day and passed an ex parte decree. The judgment and decree was not challenged. Thereafter, the decree was put into execution in E.P. No. 143 of 1982 and possession of the suit property was taken by the decree-holders on 15-2-1983. It is thereafter that defendant 11 came to know of the fraud played on him. Aggrieved by the said order, he has filed a Miscellaneous Petition under the provisions of Order 9, Rule 13, C.P.C. to set aside the decree. The said petition was opposed by the plaintiffs-decree-holders. However, on consideration of evidence of the petitioner therein, the Trial Court has set aside the ex parte judgment and decree passed by that Court. Hence, the plaintiffs-decree holders have filed this revision questioning the order of the Court below. It is their contention that they have already taken possession of the land in question and there is no enforceable decree for the Court to set aside and therefore, questioned the maintainability of the petition under Order 9, Rule 13, C.P.C. It is further submitted that the affected party could have claimed the relief under Section 34 of the Specific Relief Act.

(3.) Rebutting these contentions, the learned Counsel for the respondents submits that an ex parte decree is snatched behind his back and the Trial Court has rightly set aside the decree.