LAKSHMI RAJYAM CH Vs. K RAMA RAO

JUDGEMENT

(1.) These two Civil Revision Petition arise out of reference made by our learned brother Justice Krishna Saran Shrivastav, who doubted the correctness of the decision reported in D. Srinivasa Rao. vs. V. Subbarao which is a case of father absconding being a defendant in a suit filed on the foot of a promissory note, and sons claiming to be impleaded as defendants, has been accepted.

(2.) . The suit O.S.No. 22 of 1995 is filed on the basis of a promissory note alleged to have been executed by one Mr. Raghava Rao, husband of the first petitioner and father of petitioners 2 to 4. After summons were received by Raghava Rao, he engaged an Advocate, who sought time for filing written statement on 12-9-1995. In fact adjournments were granted on payment of costs, and the suit was finally posted to 17-10-1995, on which date, the defendant was called absent and set ex parte. An ex parte decree was passed on 27-10-1995. The respondent - decree holder filed E. P. No. 118 of 1995. Then the petitioners filed applications to implead themselves as parties to the execution petition on the ground that Raghava Rao was absconding from 6- 9-1995 and he could not be traced in spite of their best efforts, including giving a report in the police station and the respondent who is having knowledge about these facts purposely omitted to implead the petitioners as parties to the suit who have very good defence in the suit, and therefore, without impleading them the execution petition cannot be proceeded as the decree is not valid and binding on them. With similar allegations they have also filed an application before the trial Court for setting aside the ex parte decree, along with an application to condone the delay of 27 days in filing the said application. As the executing Court dismissed the application for substitution of the names of the petitioners in place of missing Judgment-debtor, Raghava Rao, the petitioners filed C.R.P. No. 2144 of 1997. As the trial Court allowed the application- I.A. No. 718 of 1996 seeking condonation of delay in filing the application to set aside the ex parte decree, the respondent filed C.R.P. No. 2558 of 1997.

(3.) . When these Civil Revision Petitions came up before our learned brother Justice Krishna Saran Shrivastav, he referred, the Civil Revision Petitions to a Division Bench, as he felt that there is a conflicting legal opinion on the question whether the heirs of an absconding defendant should be permitted to be impleaded as parties to the suit, though he is alive.