R NARAYANAPPA Vs. N NAGAPPA

JUDGEMENT

(1.) this r.f.a. and the companion c.r.p. can both be conveniently disposed of through a common order. The short point that arises is with regard to the correctness of an Order passed by the learned trial judge in an application for setting aside an ex parte decree. A plea was raised on behalf of defendant No. 5(a) that there had been no valid service on her and that consequently, the decree passed is liable to be set aside and she should be afforded an opportunity to contest the proceeding on merits. After a detailed hearing, the learned trial judge set aside the ex parte decree as far as defendant No. 5(a) is concerned. The appellants' principal contention is that this is not a money decree nor is it a type of decree that is separable as far as the parties who are bound by that decree are concerned and that consequently, if the court took the view that even one of the defendants was unserved and that the matter should be heard denovo on merits, that the only permissible Order that could have been passed was that all the defendants should have an opportunity to participate in the proceedings when the same are reopened. It is in respect of the Order passed by the learned trial judge that this appeal and the companion c.r.p. have been filed before this court.

(2.) the respondents' learned Advocate who was present and who mentioned the matter at 10.30 a.m. today, brought one fact to my notice, namely that even though the suit proceedings are pending before the high court, that no interim orders were passed as a result of which in normal course, by virtue of the Order of setting aside of the decree against defendants 5 (a), that the trial court took up the matter for hearing thereof and has proceeded. Apparently, it was never brought to the notice of the learned trial judge that technically, the Order of dismissal stood as against the remaining defendants other than defendant 5 (a) and that therefore, on "a strict construction, they may not be entitled to plead any defence at the hearing. Overlooking this fact, the learned trial judge has proceeded to take up the matter on merits and has afforded all the defendants an opportunity of participating in the proceedings.

(3.) when the appeal was taken up for hearing, the principal submission canvassed by the learned Advocate for the appellants is that once valid ground existed for rehearing or setting aside of the decree, that all defendants must get equal benefits thereof as a decree for specific performance cannot be set aside piece-meal insofar as it binds only one of the defendants. It is unnecessary for me to go into the intricacies of the contentions that are raised in these two proceedings, because effectively, the trial court has proceeded correctly. All that is necessary is to ratify that position through the present order.