SHIVAMMA Vs. SIDDAIAH

JUDGEMENT

(1.) THESE petitioners being aggrieved by the Order dated 13.03.2008 passed in F.D.P.No.4/2006 on the file of learned Civil Judge (Junior Division), Gubbi, vide Annexure-A, have presented the instant Writ Petition.

(2.) LEGAL representatives of first Respondent herein had filed the application under Section 54 of Code of Civil Procedure contending that, deceased first respondent " Siddaiah filed a suit in O.S.No.48/1997 on the file of the Trial Court for partition and separate possession of his 1/3rd share in the suit property against the second respondent " one Narasappa and deceased Huchaiah, now represented by the petitioners herein. The said suit was decreed on 30.01.2006 and a preliminary decree was drawn. The Trial Court in FDP proceedings, after considering the application filed by the first respondent against the second respondent and deceased Huchaiah, has proceeded to pass the impugned Order allowing the said application and issued the consequential order. Being aggrieved by the Order impugned, these petitioners have presented the instant Writ Petition seeking appropriate relief.

(3.) AS already observed, the respondents though served have remained unrepresented. After perusing the Order-sheet maintained in the final decree proceedings on the file of Civil Judge (Junior Division) & JMFC., Gubbi, vide Annexure-D, it is manifest on the fact of the note-sheet written by the office that there is already an application filed by these petitioners "I.A.2 for advancement of the case and I.A.3 to bring the legal representatives of deceased Huchaiah on record. On 28.01.2008, the Trial Court has specifically recorded as follows: "N.S. filed I.A.No.III under Order XXII Rule 3 CPC, for say of N.S. for application and for objection to commissioner"s report if any by 14/2/2008." The matter was taken up for consideration on 14.02.2008, the petitioner represented by CGS and the respondent by BS, submitted that, the Commissioner"s report may be accepted and the final decree may be passed. Hence, the Order was pronounced in the open Court on 13.03.2008. On 14.02.2008, there was no reference of N.S. appearing along with Sri. TNG and the matter was posted to 13.03.2008 for Orders. In the final Order passed in the final decree proceedings 4/2006 also the name of Mr. N.S. is not shown. The Trial Court has neither looked into nor passed any order on I.A.No.III filed by the petitioners herein. In view of non-passing of any Orders on the application-I.A.III and proceeding further to conclude the final decree proceedings on the application filed by the respondents herein, the impugned Order is not sustainable in law and it is liable to be rejected at the threshold. In the light of the facts and circumstances of this case as stated above, the instant Writ Petition is allowed in part. The Order impugned passed by the Trial Court in FDP.4/2006, filed under Section 54 of Code of Civil Procedure, dated 13.03.2008, vide Annexure-A is hereby quashed. Matter stands remitted back to the Trial Court for reconsideration afresh from the stage of the entry found on 28.01.2008 and proceed further and decide the same in accordance with law after affording reasonable opportunity to the petitioners and respondents and dispose of as expeditiously as possible at any rate within a period of eight weeks from the date of receipt of the copy of this Order. Ordered accordingly.