M PRABHAKAR REDDY Vs. SHIVARAMA REDDY

JUDGEMENT

(1.) Though the matter is listed for admission, having regard to the short question of law involved in the matter, with consent of the respective counsel, the same is heard for final disposal.

(2.) The fact is that the respondents herein filed a suit for partition and separate possession of their respective share in the suit schedule property before the Trial Court. The appellant herein was arrayed as defendant No.4. He remained exparte before the trial court and the suit came to be decreed. The final decree proceedings were also initiated and the same was concluded by way of compromise between the parties. Thereafter, the appellant herein filed a regular appeal in R.A. No.68/2011 before the lower appellate court, challenging the judgment and decree passed on 14.03.2011 in O.S. No. 1775/2006. The appeal memo was appended with I.A.No.1, under Order-41 Rule 5 of CPC., and I.A.No.2, under Section-5 of the limitation Act to condone the delay of 1236 days in filing the appeal.

(3.) Sri. Vishnu Hegde, learned counsel for the appellant-defendant No.4 submits that the appellant had executed a registered general power of attorney in favour of K. Rajendra on 26.06.1997 to deal with the suit schedule property and that he had purchased the property in question from the defendant No.2 in the year 1995 itself through two registered sale deeds and thereafter he formed layout and some sites are already sold and that he was not served with the notice from the trial court, but by publishing notice through paper publication, he was placed exparte before the trial Court. He further submits that defendant No.4 came to know about the impugned judgments only when he received notice in execution proceedings. Learned Counsel fairly admits that here was omission on the part of the appellant in filing the supporting affidavits to the appeal memo as well as IA Nos. 1 & 2. Though the name of the appellant was mentioned in the affidavits, actually they were sworn to by the GPA holder. The Lower Appellate Court ought to have given the appellant a chance to rectify the said inadvertent procedural error committed by him and should have permitted the appellant to contest the appeal on merits. The defendant No.4 is a bonafide purchaser of the suit property from its lawful owner and kartha of the joint family and after the purchase, sites were formed and some third parties interest also created over the property and therefore, the impugned judgment and decree not only prejudice the right and interest of the appellant-defendant No.4 but also the subsequent purchasers and hence, he prays for setting aside of the impugned judgments passed by both the courts below.