ABDUL EAHIM Vs. MADHAVAN PILLAI

JUDGEMENT

(1.) This Civil Revision Petition is by the plaintiff in O.S. No. 444 of 1120 of the District Munsiffs Court, Kottarakkara. The order sought to be revised is one allowing an application filed by the first defendant under O.9 R.13 of the Code of Civil Procedure. The point taken by the petitioner is that in view of the finding arrived at by the learned Munsiff, he had no jurisdiction to reopen the decree.

(2.) The suit was one for cancellation of a sale deed and recovery of possession of the property from the first defendant. The Trial Court set aside the sale deed in respect of 7/8 of the property. The first defendant preferred an appeal and the appellate court confirmed the cancellation of the sale deed but remanded the suit to give an opportunity to the first defendant to prove his claim for value of improvements to the extent of Rs. 500/- which was the sum claimed in appeal. After remand, there were four postings for payment of commissioners batta and on account of the first defendants default, the Trial Court passed a preliminary decree refusing the claim for value of improvements. The first defendant preferred an appeal and second appeal but both were dismissed. Thereafter the plaintiff applied for final decree and after getting a commissioners report dividing the property, a final decree was passed on 6-1-59 pursuant to which delivery of possession was given to the plaintiff on 23-6-1959. On 13-8-1959 the first defendant applied under O.9 R.13 for setting aside the final decree alleging that the same was passed without notice to him and that he came to know of it only within 30 days of his making the application. After an elaborate enquiry the learned Munsiff came to the conclusion that the first defendant had notice and that he was aware of all the proceedings up to the final decree as and when the same took place and that he was not prevented by sufficient reason from appearing in court. Nevertheless the learned Munsiff passed an order giving a further opportunity to the first defendant to prove his claim for value of improvements with the direction that the same could be set off against the claim for mesne profits and further directing that the delivery of possession in execution would stand. The revision petition is filed against this order.

(3.) The order passed by the learned Munsiff cannot be supported. The claims for value of improvements was disallowed by the preliminary decree passed on 14-8-1953 and the same was not sought to be set aside. The learned Munsiff held: