VINCENT PALHA ALIAS VINCENTE PALKE Vs. JEFFERY FERNANDES

JUDGEMENT

(1.) BY this appeal under Order 43 of the Code of Civil Procedure, the appellants have challenged the Judgment and Order dated February 17, 2003 passed on Civil Misc. Application No.149/2003 which, in turn, rejected the prayer for setting aside the ex-parte Judgment and Decree passed by the Addl. District Judge, at Mapusa in Regular Civil Appeal No.46/2001 dated May 27, 2002.

(2.) BRIEFLY stated, the respondent filed a suit being Special Civil Suit no.46/94 before the Court of Civil Judge, Sr. Division, at Mapusa for eviction, mandatory and permanent injunction and recovery of mesne profits, against the appellants. The said suit, however, came to be dismissed by the Judgment and Decree dated June 13, 2000. Against that decision, the respondent carried the matter in appeal being Regular Civil Appeal No.46/2001 before the Addl. District Judge, Mapusa. It is the appellants' case that the appellants were not served with summons of hearing of the said appeal at all. Nevertheless, the appeal came to be decided ex-parte against the appellants by Judgment and Decree dated May 27, 2002. By this decision, the appellate Court was pleased to decree the suit in favour of the respondent. It is the case of the appellants that as soon as the appellants became aware about the said ex-parte Judgment and Decree passed by the Addl. District Judge, Mapusa, they immediately filed an application for setting aside the same, sometime in August, 2002, being Civil Misc. Application No.149/2002 under Order 41, Rule 21 of C.P.C. That Civil Application was, however, dismissed on February 17, 2003 being devoid of merits. Against the said decision, the appellants have preferred the present appeal from order.

(3.) THE core question that needs to be addressed in the present appeal is, whether service of summons regarding hearing of the appeal on appellant No.(e) can be said to be legitimate, so as to reject the claim of the appellants for setting aside the ex-parte Judgment and Decree passed against them by the appellate Court ? Before we proceed to examine the submissions, it will be apposite to advert to Rule 15 of Order 5, which reads thus: