MARGRET JOSEPH Vs. DIVISIONAL FOREST OFFICER

JUDGEMENT

(1.) IN this writ petition, the petitioners who are the plaintiffs in O.S.No. 267/1995, challenge Ext. P5 order passed by the District Court in C.M.A. No. 138/2000, which was passed in an appeal filed against Ext. P3 order in I.A.No. 738/1997 filed under Order IX Rule 13 of the Code of Civil Procedure to set aside Ext. P1 ex parte decree passed by the learned Munsiff in the said original suit. Since the defendants, who are the respondents, did not file written statement in the suit, the learned Munsiff proceeded under Order VIII Rule 10 of the CPC and decreed the suit in favour of the petitioners. Against the same, the defendants filed I.A.No. 739/1997 under Order IX Rule 13 to set aside the ex parte decree. By Ext. P3 order, that I.A was dismissed on a finding that the defendants have not shown sufficient cause to set aside the ex parte judgment. The defendants filed C.M.A.No. 138/2000, which resulted in Ext. P5 judgment wherein the learned District Judge found that the defendants have shown sufficient reasons to set aside the ex parte decree and allowed the C.M.A. The said judgment in the C.M.A. is challenged by the petitioners on the ground that no petition under Order IX Rule 13 of the CPC, 1908 would lie against a decree passed under Order VIII Rule 10 of the CPC.

(2.) THE legal position in this regard is settled by a Division Bench of this Court in Manick Peter v. Surendranathan, reported in 1987 (2) KLT 328 wherein a Division Bench of this Court had categorically held that against a decree passed under Order VIII Rule 10 for failure of defendant to file written statement, a petition under Order IX Rule 13 is maintainable. In view of the said Division Bench decision, which is binding on me, I do not find any merit in the contentions of the petitioners in this writ petition. Accordingly, the writ petition is dismissed.