DODDA LAKKANNA Vs. LAKSHMIDEVAMMA AND

JUDGEMENT

(1.) The Petitioner before me is the auction-purchaser in a Court sale. The 2nd Respondent, i.e. the Corporation of the City of Bangalore, instituted a suit in the court of the First Mansiff, Banglore, against the 1st Respondent and got a decree The service of the summons in the said suit was effected on 2-9-1949 by registered post. On 10-9-1949, an ex-parte decree was passed in favour of the 2nd Respondent. An application was thereafter made on behalf of the 1st Respondent by her husband to set aside the said decree. The main ground in that application was that the Respondent 1 was of unsound mind. The lower Court held on evidence adduced before it that the 1st Respondent was of unsound mind and set aside the decree. The present petition has been filed against the said order of the lower Court.

(2.) Two grounds were urged in support of this petition. In the first place it was urged that the application is not maintainable. The second ground urged was that there has been gross misappreciation of the evidence by the Court below. With regard to the first ground, it was contended by the learned Advocate appearing for the petitioner before me that the only remedy open to the defendant in such a case was to file a suit for a declaration that the decree is a nullity and not binding upon her and the application was not maintainable. In support of that contention he relied on a decision of the Oudh Chief Court reported in Mrs. Alexander v. M.S. Jalil AIR 1940 Oudh 279 and also a decision of this Court in Nanjundiah v. Padmarajiah, 37 Mys HCR 181.

(3.) As against the said contention of the learned Advocate for the Petitioner, the learned Advocate for the 1st Responuent urged before me that the application is maintainable either under Order 32, Rule 5 Sub-rule (2) of the Code of Civil Procedure or under Section 151 of the Civil Procedure Code. (4) Order 22, Rule 5 Sub-rule (2) of the Code reads as follows: