MAMU Vs. KUNHAMINA UMMA

JUDGEMENT

(1.) This revision petition arises out of a common order of the Subordinate Judge, Trichur, dismissing 3 interlocutory applications filed in 1969 by the revision petitioner, one to set aside the ex parte decree in the suit, the other to condone the delay in filing that petition and the third to implead the revision petitioner as the 2nd defendant in the suit.

(2.) The above interlocutory applications were filed under the following circumstances: The 2nd respondent was the owner of the suit property. He executed a simple mortgage over it on 18-4-1968 for Rs. 20,000/-in favour of the 1st respondent. On the basis of the mortgage, the 1st respondent filed the suit to recover the amount by sale of the property. The 2nd respondent made his appearance in the suit and contested it. White so, on 17-11-69, the 2nd respondent remained absent and he was, therefore, declared ex parte. Accordingly, an ex parte preliminary decree for sale was passed in the suit on the same day. On 28-1-1970, the 2nd respondent sold the equity of redemption over the suit property to the revision petitioner directing him to pay the mortgage amount on the representation that the suit for recovery of the amount was pending and that he would contest the suit. But, on 17-2-1970, the husband of the 1st respondent told the revision petitioner that the suit had already been decreed ex parte. Therefore, the revision petitioner filed the above 3 petitions on 19-2-1970.

(3.) The first of these petitions was to implead the petitioner as a party to the suit, the other to set aside the ex parte decree and the last to condone the delay from 17-11-1969 which was the date of the ex parte decree to 19-2-1970 which was the date on which the petition was filed to set aside the ex parte decree. These petitions were opposed by the 1st respondent and the lower court on a consideration of the respective contentions came to the conclusion that the revision petitioner has no right to be impleaded in the suit and that the petition to set aside the ex parte decree was barred by limitation as the revision petitioner did not file the petition within 30 days from the date of the ex parte decree.