SHAIBU Vs. SURESH

JUDGEMENT

(1.) The petitioner in O.P.(C).No.2627/2019 is the plaintiff and the petitioner in O.P.(C).No.2775/2019 is the defendant in O.S.No.474/2010 on the files of the Additional Sub Court, Palakkad. The suit was dismissed on 02.02.2019. Thereafter, the plaintiff filed I.A.No.662/2019 under Order 9 Rule 9 CPC for restoring the suit, which was dismissed for default. The trial court dismissed the said application, against which appeal was filed by the plaintiff. The appellate court as per judgment in CMA No.74/2019 set aside the order passed by the trial court and allowed I.A.No.662/2019. Accordingly, the suit was restored. An interlocutory application was filed by the plaintiff along with O.S.No.474/2010 as I.A.No.2064/2010. The trial court granted an interim order of status quo in the execution petition in O.S.No.280/1999. After restoration of the suit, the plaintiff filed E.A.Nos.118/2019 and 119/2019 before the execution court to stay the delivery. The court below as per Ext.P6 common order, dismissed the said application stating that even though the stay order was there in the suit initially, the said order was not revived by the court when the suit was restored back to the file and hence the stay order lapsed on the date of dismissal of O.S.No.474/2010 on default. Aggrieved by the said order, O.P.(C).No.2667/2019 was filed and aggrieved by Ext.P7 order of the appellate court in CMA No.74/2019, O.P.(C).No.2775/2019 was filed.

(2.) Heard.

(3.) The plaintiff filed O.S.No.474/2010 inter alia praying for setting aside the decree and judgment in O.S.No.280/1999, contending that even though the plaintiff purchased the property involved in O.S.No.280/1999 prior to the filing of the said suit, the plaintiff was not made as a party to the suit even though the vendor of the plaintiff was made as a party. O.S.No.280/1999 was filed after the sale of the property in the name of the plaintiff in O.S.No.474/2010. O.S.No.474/2010 was dismissed for default on 02.02.2019. The application filed by the plaintiff under Order 9 Rule 9 CPC was dismissed by the trial court, against which an appeal was filed. The appellate court as per Ext.P9 judgment, allowed the application filed under Order 9 Rule 9 CPC and restored the suit to the file.