SADULA NARSHIMHA Vs. SADULA TULASI DAS

JUDGEMENT

(1.) THIS revision is directed against the order dated 26. 10. 2007, passed in C. F. R. No. 3902 of 2007 on the file of the Court of the District Judge, Mahabubnagar, whereby the learned District Judge refused to entertain the appeal filed by the petitioners under Section 96 of the Code of Civil Procedure, 1908 (CPC), seeking to set aside the decree and judgment dated 01. 09. 1996 passed in O. S. No. 4 of 1996 on the file of the Court of the Junior Civil Judge, Shadnagar.

(2.) BEFORE adverting to the question involved in this revision, it is necessary to notice the factual matrix obtaining herein. The father of the respondents herein, by name Rangaiah, instituted O. S. No. 4 of 1996 before the learned Junior Civil Judge at Shadnagar against the father of petitioners herein, by name Saddula Narayana, for recovery of possession of the suit property. As the said Narayana did not contest the suit, he was set ex parte and thereafter, an ex parte decree was passed on 01. 09. 1996. As the petitioners allegedly did not have knowledge about the said ex parte decree, and there was threat of their dispossession by the respondents, they filed O. S. No. 104 of 2002 before the learned Senior Civil Judge, Mahabubnagar. During the pendency of the suit, it came to light that there was an ex parte decree passed against their father on 01. 09. 1996. Therefore, coming to know of the said fact, they filed an appeal under Section 96 CPC before the learned District Judge, Mahabubnagar. However, the appellate Court dismissed the said appeal on 21. 09. 2007 with the following objections : (1) It should be stated as to how the appellants are the third parties when they are legal representatives of the defendant Saddula Narayana. (2) The ex parte decree has been passed on 01. 10. 1996, the petitioners/appellants to state as to why steps were not taken to set aside the said decree. (3) It should be stated as to how the appeal is maintainable when the suit O. S. No. 104 of 2002 is pending on the file of the Senior Civil Judge's Court, Mahabubnagar in respect of the same schedule property.

(3.) LEARNED counsel for the petitioners, Sri K. Govardhan Reddy, strenuously contended before this Court that petitioners can maintain an appeal under Section 96 CPC as they are the interested persons and children of late Saddula Narayana. It is his further contention that the ex parte decree passed on 01. 09. 1996 against the father of the petitioners is against their interest and as such, they are the Aggrieved persons and entitled to file an appeal under Section 96 CPC. In this context, the learned counsel has drawn my attention to the judgments in Radha Bai v. Banka Chinnayya State of Punjab v. Amar Singh, Balakrishna Das Agarwal v. Smt. Radha Dev and Baldev Singh v. Surinder Mohan Sharma.