NARAYAN SAKHARAM DIVKAR Vs. REKHA S MANDREKAR

JUDGEMENT

(1.) THIS Petition filed under Article 226 and 227 of the Constitution of india takes exception to the Order dated 19. 01. 2009 passed by the learned civil Judge, Junior Division, at Mapusa in Misc. Civil Application No. 5/2008/d, by which Order, the application under Order IX Rule 13 filed by the respondents herein, came to be allowed and the exparte Decree passed against the husband of the Respondent no. 1, i. e. the Defendant in the said suit Shri Suresh Mandrekar, came to be set aside and resultantly, the execution Application filed by the Petitioners came to be stayed till the disposal of the said suit.

(2.) THE Petitioners herein had filed a Regular Civil Suit no. 52/92 seeking permanent injunction in respect of the property surveyed under no. 215/17. In the said suit, the summons were served upon the Defendant i. e. Shri Suresh Mandrekar and the Bailiff Certificate/report dated 01. 04. 1992 was submitted. On 30. 04. 1992, the day when the suit was kept for hearing, neither the said Defendant nor his Advocate remained present and the suit was therefore ordered to be proceeded exparte against the Defendant. The defendant thereafter moved an application for setting aside the said exparte order and on the basis of the no objection given by the Plaintiff, the said application filed by the Defendant came to be allowed and the said Order of proceeding exparte against Defendant was set aside on 29. 07. 1992. Inspite of opportunities, no written statement was filed by the said Defendant. The suit was adjourned from time to time at the request of the Defendant. On each date, neither the Defendant nor his Advocate appeared. Ultimately, on 24. 07. 1992, arguments were heard and by Judgment and Order dated 06. 08. 1997, the suit came to be decreed. The Plaintiff thereafter filed execution Application being no. 30/2007/d against the Defendant Shri Suresh mandrekar on 08. 10. 2007. On the Plaintiff acquiring knowledge that the defendant was dead, an application was moved under Section 50 of the Civil procedure Code to join his heirs i. e. the Respondents in the above Petition as parties to the said Execution Application. The application came to be allowed and the heirs were joined as parties to the said Execution Application. It is thereafter, that the Respondents above named, who are the heirs of the original Defendant, filed an application under Order IX Rule 13 read with section 151 of the Civil Procedure Code for setting aside the exparte Decree passed on 06. 08. 1997. The principal ground on which the relief of setting aside the Decree was sought was that, the Respondents were not parties to the said suit and they became aware of the suit being decreed on notice being served of the Execution Application. .

(3.) THE said application was opposed by the Plaintiff i. e. the petitioner herein, inter alia, on the grounds mentioned in the reply. The Trial court considered the said application and allowed it by the impugned Order dated 09. 01. 2009. A reading of the Order discloses that the Trial Court was persuaded by the fact that the Respondents herein were not parties to the suit and, therefore, were not aware of the proceedings. Moreover, the Decree that was passed was only against the said Defendant Shri Suresh Mandrekar and not against the Respondents herein. In so far as the locus standi of the said respondents to file the application was concerned, the Trial Court held that the legal representatives were enabled to file an application to set aside the said exparte Decree.