L SOORAIAH Vs. L SOMARAJU

JUDGEMENT

(1.) The 7th defendant in the suit is the petitioner in this review petition. He remained ex-parte in the trial Court in 0 S No. 110/71. The suit was tried by the learned Subordinate Judge, Kovvur. The suit was one for possession of immovable property and for mesne profits from 1970-71. By its judgment dated 27-2-1976 the trial Court decreed the suit against defendants 1 to 6 for recovery of possession of half of the plaint schedule property and for partition of the same and for past and future profits. The suit was dismissed against the petitioner 7th defendant.

(2.) An appeal A S No. 947 of 78 was preferred by the plaintiff to this Court. In the said appeal preferred by the plaintiff the 7th defendant was impleaded as the 6th respondent and notice was dispensed with under the provisions of Order 41. Rule 14, C P C. as amended in Madras and adopted in Andhra Pradesh, At the time when the appeal was heard by me the 7th defendant was treated as a person to whom further notice need not be issued in this appeal, in view of the special procedure laid down in the Civil Procedure Code as amended in Madras and in Andhra Pradesh. After hearing the learned counsel for the appellsnt-plainiiff at length I rendered an elaborate Judgment on 25-7-1986 and allowed the appeal even as against 7th defendant. Subsequently when execution proceedings were sought to be taken in respect of the subject matter of appeal, the 7th defendant came to know about the judgment passed by the Court and filed Letters Patent Appeal SR No 16354 of 1987 and prayed for condonation of delay of 229 days in the filing of the said L P A in C M P No 5416 of 87. When the matter came up before a Division Bench of this Court on April 14, 1987, it appears to have been submitted that after commencement of the C P C, amended Act of 1976, the High Court ought not to have dispensed with notice to respondents who remained ex-parte in the lower Court and that, therefore, the judgment rendered by me was liable to be set aside and the 7th defendant be allowed to defend his case. The Division Bench appears to have not entertained the appeal but instead suggested that the petitioner should go before the Single Judge and seek for review. The petitioner was permitted to amend the cause title and the relief sought for in the appeal. Thereafter, the petitioner converted the appeal memorandum into one for review under 0 47, Rule 1 C P G and also converted the application for condonation of delay in the filing of the appeal as one for condonation of the delay in filing the review application. But my order dated 15-4-1987,I condoned the delay in the filing of the review petition and thereafter, I heard the review petition as well as the main appeal I am passing this order in the review petition.

(3.) Order 41 R. 14 CPC was amended in Madras and that was adopted in Andhra Pradesh by permitting the appellate Court to dispense with notice in the appeal in cases where a respondent who was the defendant or a respondent in the lower court had remained ex-parte in such lower Court. The said amendment read as follows :-