K SUDHAKAR REDDY Vs. IND BANK HOUSING LIMITED

JUDGEMENT

(1.) PETITIONER/defendant No.1 in O.S.No.4 of 2002 on the file of II Additional District Judge, Madanapalle calls in question the order dated 24-01- 2007 passed by the learned Judge in I.A.No.646 of 2005 in I.A.No.437 of 2002 in the said suit, whereunder the I.A. filed by the 1st respondent/plaintiff under Order IX Rule 9 r/w 151 CPC for restoring the I.A.No.437 of 2004 against the proposed 4th respondent/4th defendant was allowed.

(2.) THE 1st respondent/plaintiff-bank filed the above suit for recovery of Rs.1,00,69,351/- along with interest and costs against the petitioner/1st defendant and two others in which defendants filed I.A.No.437 of 2004 for rejection of the plaint. When the same came up for trial, the 3rd defendant died on 25-02-2004 leaving behind him the proposed 4th respondent/4th defendant as his legal heir. Consequent to his death the plaintiff-bank filed I.A.No.437 of 2004 for impleading the proposed 4th defendant as legal heir of 3rd defendant and for making consequential amendment. When the plaintiff-bank failed to serve the notice on the proposed party substituted service was ordered by way of making paper publication in Praja Shakthi daily. Since the 1st respondent/plaintiff failed to comply the said order effecting substituted service I.A.No.437 of 2004 was dismissed against the proposed 4th respondent. For restoration of the same the present I.A. was filed.

(3.) PETITIONER/1st defendant and other defendants contested the same contending that along with the above I.A. plaintiff/bank filed I.A.No.163 of 2006 under Section 5 of the Limitation Act for condoning the delay in filing the legal representative petition and I.A.No.165 of 2006 under Order XXII Rule 9 CPC for setting aside the abatement. Petitioner herein carried the matter in revision-C.R.P.No.3861 of 2006 and this Court set aside the order dated 06-02- 2006 and remitted the matter for fresh consideration. On remand, notice was ordered to the proposed respondent.