K. KRISHNASAMY Vs. CHINNAMMAL

JUDGEMENT

(1.) THE petitioners are second and third defendants in O.S.No.974 of 1991 on the file of the learned I -Additional Subordinate Judge, Madurai. They are the respondent Nos. 2 and 3 in I.A.No.55 of 2005, the final decree application. The respondents filed the suit for partition and separate possession of their 1/4th share in the suit properties. The preliminary decree was passed on 1.11.2004 and there had been no appeal against preliminary decree. Thereafter, the respondents filed the application in I.A.No.55 of 2005, on the file of the said Court for passing final decree. In that application notices were served upon the respondents i.e., the petitioners herein and they have also made their appearance. The Advocate Commissioner was appointed for division of the properties and he filed his final report on 5.1.2006. After receipt of the Commissioner -s report, the Court called for the objections from both sides. On 13.6.2006 the respondents were not present before the Court and hence, the Court made the following order -respondents called absent, no representation till 5.05 p.m, respondents set ex -parte perusal and orders on 20.6.2006 -. On 20.6.2006, the Court passed the final decree after hearing the petitioners.

(2.) THE petitioners filed the application under Order 9, Rule 7 of the Civil Procedure Code for setting aside the -ex -parte order - passed on 20.6.2006. In the affidavit they have stated that no opportunity was given to the petitioners to file their objections and the Court even without considering the shares of other parties seems to have passed an ex -parte order on 20.6.2006, that the Commissioner report has been filed in a hurried manner so as to divide the claims of the other sharers and passed the ex -parte order on 20.6.2006 and the same has to be set aside for giving them an opportunity to participate in the entire proceedings and the petitioners are also filing a separate application for the re -issue of Commissioner warrant at later point of time and in the interest of justice and equity the application has to be allowed.

(3.) THE petition was stoutly resisted by the respondents by stating that in spite of granting sufficient opportunities to the petitioners, they did not appear before the Court, allowing the Court to appoint the Advocate Commissioner for dividing the properties, who has also filed his final report on 5.1.2006 for which these respondents filed their objections on 13.6.2006 and since the petitioners did not appear before the Court on 13.6.2006, they were set ex -parte and the final decree was passed on 20.6.2006. In pursuance of the final decree, these respondents produced stamp papers to the value of Rs.10,000/ - (Rupees Ten Thousand Only) for engrossing the final decree and got the same from the Court and presently they have filed the execution petition for delivery of the property and the same is pending. Hence, the petition has to be dismissed since it is not bona fide.