MITAYAGARI KHADAR SAHIB Vs. ABDUL RASOOL

JUDGEMENT

(1.) This is a revision petition filed against the order of the District Munsiff of Tadpatri passed on 27th November, 1967 in I.A. No. 130 of 1967 in O.S. No. 276 of 1964.

(2.) The necessary facts are that the petitioner filed a suit for the recovery of Rs. 348 on the foot of a mortgage deed, dated 20th August, 1953, against one Gandikota Ghouse Bi. A summons was sent to her. She is alleged to have refused to receive the summons on 5th September, 1964. She was set ex parte and consequently the suit was decreed on 25th September, 1964. "The plaintiff thereafter filed I.A. No. 94 of 1967 for bringing the respondents on record as the legal representatives of Gandikota Ghouse Bi, the defendant, who died subsequent to the passing of the preliminary decree alleging that the respondents herein were her sons. The respondents filed an application, I.A. No. 130 of 1967, under Order 9, rule 13 Civil Procedure Code to set aside the preliminary ex parte decree passed in O.S. No. 276 of 1964. It was alleged that their mother was not served with the summons and that they came to know of the ex parte preliminary decree only on 6th July, 1967 when the notices were served on them in I.A.No. 94 of 1967.

(3.) This petition was resisted by the plaintiff on various grounds. It was contended mainly that the legal representatives cannot file an application to set aside the decree passed ex parte against the defendant. I am not concerned with the other contention because nothing turns upon them. The learned District Munsiff, by his order dated 27th November, 1967, rejected this contention holding that the legal representatives of the defendant can file an application under Order 9, rule 13, Civil Procedure Code. It is this view that is now challenged in this revision petition.