MOHAMMED SHALAM Vs. JAMBANAGOUDA S/O HANUMANTHA

JUDGEMENT

(1.) The petitioners/decree holders filed the present revision petition against the order dated 28.01.2016 on I.A.IX made in FDP No.10/2016 on the file of the Additional Senior Civil Judge and JMFC, Raichur allowing the application under Order 9 Rule 7 of CPC filed by the respondent Nos.2 and 3 before the FDP and respondent Nos.1 and 2 before this Court subject to payment of costs of Rs.5,000/- payable by the petitioners and permitted them to contest the case on merits.

(2.) The father of the petitioner No.3 late Syed Hussain has filed a suit for partition and separate possession against the respondents in O.S.No.74/1999. After contest, the suit came to be decreed on 09.11.2004 holding that the plaintiff is entitled for partition of the suit schedule properties and for a separate possession of his half share by metes and bounds. The said judgment and decree passed by the Trial Court has reached finality. Thereafter, the father of petitioner No.3 filed a final decree proceeding in FDP No.10/2006 on 01.02006. The said FDP was posted for appearance of respondent Nos.2 and 3 on 28.03.2006. The said respondents deliberately remained absent to hamper the proceedings. After lapse of ten years, the respondents filed an application under Order 9 Rule 7 read with Section 151 of CPC in I.A.IX to set aside the exparte order dated 28.03.2006 contending that FDP was posted on 28.03.2006 for appearance of respondent Nos.2 and 3 and the Court in the absence of respondent Nos.2 and 3 placed exparte but, no notice of FDP was served personally on them. They came to know about FDP only after receiving the notice issued by the surveyor through RPAD. According to them, they have purchased the suit property from defendant No.1 under a registered sale deed dated 09.11999. According to them, they are in possession of the suit land from the date of purchase and they are cultivating the same till today without any interference. Their absence in FDP on 28.03.2006 is not intentional and no prejudice will be caused to other side if the application is allowed. The said contention was opposed by the decree holders stating that the respondents have served on 28.03.2006 itself and the statement made by them that they have not received notice is contrary to the material on record. The Trial Court considering the application and objections, by the impugned order 28.01.2016 allowed the application I.A.IX with cost of Rs.5,000/-. Hence, the present petition is filed by the decree holders.

(3.) I have heard the learned counsel for the parties to the lis.