KAVALI NARAYANA Vs. KAVALI CHENNAMMA

JUDGEMENT

(1.) Defendants in O.S. No.202 of 1991 on the file of Junior Civil Judge, Mahabubnagar are the petitioners herein. An application filed by them to condone the delay in presenting a petition under Order 9 Rule 13 C.P.C. was dismissed by the Trial Court. Hence this revision.

(2.) The respondent tiled the suit for the relief of partition and separate possession of the suit schedule properties, in the year 1991. The father of the petitioners viz., Balappa and the father of the respondents viz., Chandrappa are brothers. The petitioners filed their written statement. They pleaded that the suit schedule property is their self-acquisition and that a partition has already taken place between Balappa and Chandrappa, in relation to joint family properties. Initially, the suit was dismissed for default on 29.1.1997. It was restored on 13.11.1998. Soon thereafter, an ex parte preliminary decree was passed on 25.11.1998.

(3.) Petitioners filed an application under Order 9 Rule 13 C.P.C. to set aside the ex parte preliminary decree dated 25.11.1998. Since there was delay in submitting the same, they filed IA No.835 of 2003 under Section 5 of the Limitation Act. They pleaded that they engaged an advocate viz., Sekhar Reddy in the suit in the year 1992 and the notice in application filed by the respondent under Order 9 Rule 9 C.P.C. to set aside the order dismissing the suit for default was served upon him. It is their case that the said advocate died in May 1988 even while the LA. was pending, and despite the same, the Trial Court proceeded with the matter without issuing any notice to them. They also alleged that on 3.6.1999 they received summons in I.A.No.336 of 1999, filed for passing of final decree and they engaged Sri N.B. Venkatesh to represent them. According to them, their Counsel informed them to the effect that he would take necessary steps in the matter and as and when necessity arises he would intimate them through a letter. They contended that they did not receive any communication and ultimately when they found that a Commissioner was visiting their property, they verified the matter with their Counsel. He is said to have informed them that a letter addressed by him was not responded to, and soon thereafter, the petition is filed.