DEVAMMA Vs. D.MADAPPA

JUDGEMENT

(1.) This revision petition is directed against the impugned judgment and order dated 26.02.2015 made by the III Addl. Senior Civil Judge and CJM, Mysuru passed in Misc.No.28/2012 whereby the miscellaneous petition in Mis.No.28/2012 filed by Respondent No.1 herein, i.e., D.Madappa under Order IX Rule 9 of CPC was allowed and the suit in O.S.No.100/2010 was restored to file.

(2.) Respondent No.1 filed the said Miscellaneous Petition No.28/2012 seeking setting aside of the order dated 21.09.2011 dismissing O.S.No.100/2010 for non-prosecution. It is contended that the said suit was filed by one Devamma who is alleged to be the aunt of Respondent No.1 herein. It was also contended that the said Devamma expired on 20.07.2011 leaving behind Respondent No.1 herein to succeed to her estate including the property in question under an alleged Will said to have been executed by Devamma. The said suit was filed by Devamma for declaration, partition and other reliefs.

(3.) In the said miscellaneous petition, Respondent No.1 also contended that on 30.08.2011, the suit was posted before the Trial Court on which day, Respondent No.1 filed an application under order XXII Rule 10 CPC to grant leave to Respondent No.1 to continue the suit as an assignee in view of the fact that there was devolution of the subject matter of the suit in his favour under Devamma's Will as alleged by him. Having received the application filed by Respondent No.1, the Court below directed the Respondent No.1 to produce the original Will and adjourned the case to 02.09.2011. It is contended that on 02.09.2011, Respondent No.1 produced the original Will along with a memo which was received by the Court, but the same was not mentioned in the ordersheet. On 21.09.2011, the Court below dismissed the said application filed by Respondent No.1 for non-prosecution. Consequent to dismissal of the application filed by the Respondent No.1 under Order XXII Rule 10 CPC, the trial Court proceeded to dismiss the suit since there were no other legal representatives of said Devamma.