D NEELAMMA Vs. D KANAKAMMA

JUDGEMENT

(1.) This appeal and the revision arise out of the common order dated 21st December, 1987 passed in 1.A. Nos. 1358/86 and 1483/86. The civil revision petition is against the order in LA. No. 1483/86, a petition filed under Sec. 5 of the Limitation Act, while the civil miscellaneous appeal is filed against the order in LA. No. 1358/86 in O.S. No. 294/84 on the file of the II Addl. Subordinate Judge, Vijayawada. It is a petition filed under Order 9 Rule 13 and Sec. 151 C.P.C. The court dismissed the two petitions and hence the petitioners-defendants 1 to 4 have come up with this appeal and revision.

(2.) To understand the real controversy in this litigation a few dates and facts have to be narrated. The present contesting respondents-plaintiffs filed a suit for partition. D-5 to D-14, D-19, and D-20 were set exparte on the very first hearing date. D-l to D-4 were represented by an Advocate. Fresh summons were ordered to D-15 to D-18. Subsequently by reason of a memorandum filed by the plaintiffs the suit was dismissed as not pressed regarding D-15 to D-18. The suit underwent adjournments for filing of the written statements from 28-9-84 to 21-6-85. On 21-6-85 though the defendants appeared through their Advocate they did not file the written statement. Then after passing an elaborate order the court declared that D-l to D-4 were set exparte because they did not file a written statement. Subsequently as the plaintiffs did not pursue the suit it was dismissed for default on 1-8-85. Troubles arose after 1-8-85. The plaintiffs filed I. A. No. 3367/85 under Section 5 of the Limitation Act for condoning the delay of nine days in filing I.A. No. 4142/85, a petition under Order 9 Rule 4 to restore the suit dismissed for default on 1-8-85. In these two petitions first the court ordered notice to defendants 1 to 4 who were represented by an Advocate but who according to the order of the court were set exparte for their not filing the written statement. Then subsequently the court endorsed that no notice need be taken to D-l to D-4 and without issuing notice to D-l to D-4 it lias allowed the two petitions and restored the suit to file on 28-11-85. The orders in these two I.As. were not challenged and they have become final. The suit was decreed exparte on 2-12-85. Then the present appellants D-l to D-4 filed LA. 1358/86 to set aside the exparte decree dt. 2-12-85 and also filed LA. 1483/86 for condoning the delay if any in filing LA. No. 1358/86. The court dismissed both these I.As. on 21-12-87 and the order dt. 21-12-87 is now under challenge.

(3.) The crucial question in this appeal and the revision is whether D-l to D-4 who were earlier set exparte for not filing a written statement are entitled to notice regarding the petitions LA. Nos. 3367/85 and 4142/85 and whether these defendants are entitled to get the order d/21-12-87 set aside on the ground that those petitions were allowed behind their back and without notice to them.