DEVAKI Vs. SUKUMARAN NAIR

JUDGEMENT

(1.) The counsel for the revision petitioners and the counsel for the respondent have endeavoured their best to enlighten the court on a point of law on which different views have been expressed by the High Courts in India. The question is whether an application under O.9 R.13 CPC. for setting aside an ex parte decree, when that decree has been confirmed by the appellate court, is to be filed before the appellate court or the Trial Court that set it ex parte.

(2.) Now the short facts: O. S. 427 of 1971 on the file of the Principal Munsiff of Neyyattinkara was one for partition of the plaint schedule properties. At the instance of the 34th defendant an appeal, A. S. 596 of 1975 on the file of the District Court, Trivandrum, was filed against the preliminary decree passed on 17-11-1975; that was, later, transferred to the Court of the Subordinate Judge, Trivandrum, in which court it was renumbered as A.S. 292 of 1977. One of the defendants, Sankara Pillai, died during the pendency of the suit, and his legal representatives (wife and daughter) were impleaded as defendants 26 and 27. They were allotted as per the preliminary decree 31 1/4 cents of land in C schedule to the decree. The said Sankara Pillai had, even before the filing of the suit, as per Ext. B-10 sale deed dated 11-8-1969. sold four cents out of the share to which he was entitled, to defendant No. 37 (respondent No 36 in the appeal) who happened to be declared ex parte before the passing of the preliminary decree on 11-7-1975. When the said appeal was thus pending, the said 37th defendant, who is the first respondent herein, filed I. A. 1044 of 1976 on 24-5-1976 before the Appellate Court for setting aside the ex parte decree stating that he was serving the Central Reserve Police at Shillong. and it was only on 3-5-1976, on his coming home on leave, that he came to know about the decree, no notice of the suit having been served on him. This application was dismissed by that court on 17-11-1977, on which date the appeal itself also was dismissed. In the order dismissing the application for setting aside the ex parte decree the court had stated that the application was not maintainable before that (appellate) court, besides making certain remarks touching the merits of the application. After the dismissal of the appeal and of I. A. 1044 of 1976 on 17-11-1977 as mentioned above, the petitioner filed in the appellate court on 15-12-1977 E. A. No. 9584 of 1977 to set aside the ex parte decree against him stating inter alia that he had earlier filed an application for setting aside the ex parte decree in that very same court when the appeal was pending, under wrong advice. There was a delay of one year and seven months in filing the application, and to condone this E. A. No. 9585 of 1977 was filed. The court below having allowed both the applications, this revision has been preferred by defendants 26 and 27 who were counter petitioners 2 and 3 in the execution application, the first counter petitioner being the plaintiff in the suit. It is seen ordered on 21-2-1980 that none need be recorded as the legal representatives of the 2nd respondent in the CRP (the plaintiff) who died pending the CRP.

(3.) The counsel for the petitioners submitted that having filed earlier. I.A. 1044 of 1976, which ended in the dismissal thereof, first respondent (D37) was not entitled to invoke the jurisdiction of the appellate court again for the very same purpose. He would also submit that though towards the end of the order dated 17-11-1977 it was mentioned that the application was not maintainable in that court, the dismissal of the application was on merits also after considering all aspects of the matter. He also pointed that if the respondent was actually aggrieved by the ex parte decree, what he ought to have done was to move the Trial Court which passed the decree seeking a stay of hearing of the appeal, pending disposal of his application for setting aside the ex parte decree.