KOJJARAPU VENKATA RAO Vs. RAJAPUDI NAGESWARA RAO

JUDGEMENT

(1.) The CRP is filed against the orders of the learned District Munsif, Pithapuram in IA No.18 of 1997 in OS No. 106 of 1996 dated 10-4-1997.

(2.) The petitioner is the defendant. Plaintiffs filed suit for declaration that the entries in Pattedar Pass Book were erroneous and false and for consequential direction for rectification of Records of Rights after proper enquiry. The Court fixed the date of appearance of defendant on 7-11-1996 and accordingly summons were issued and served. But, however, the matter was adjourned to 30-12-1996 for filing the written statement.

(3.) It is the case of the petitioner that the written statement was prepared, signed and was handed over to the Counsel. But, however, on the said date, the Counsel was not present in the Court when the matter was called and he could not file the written statement which was available with him. Therefore, the lower Court set the defendant ex parte. On 31-12-1996, the defendant filed an application IA No.18 of 1997 to set aside the ex parte order and the said IA was dismissed on 10-4-1997. Finally, the suit was decreed ex parte with costs on29-4-1997. The Defendant aggrieved by the order passed in IA No.18 of 1997 filed the present CRP on 14-7-1997 challenging the said orders. But, however, it is sated that the defendant filed an application on 11-4-1997 for copy application and the same was furnished by the lower Court on 26-4-1997. It is submitted that the order of the lower Court in dismissing the IA No.18 of 1997 refusing to set aside the order setting the defendant ex parte is illegal and contrary to law. The lower Court committed an error in dismissing the application. However, a preliminary objection was taken by the learned Counsel for the respondents/plaintiffs that the CRP is not maintainable as the lower Court even prior to the filing of CRP had already decreed the suit on 29-4-1997. As on the date the suit was decreed, petitioner did not file any revision before this Court and no revision can be said to be pending. Under these circumstances, he submits that it is open for him to take appropriate steps by filing an appeal either under Section 96 CPC or file an application under Order 9, Rule 13 CPC to set aside the ex parte decree. The order passed by the lower Court in IA No. 18 of 1997 cannot be assailed as the revision became infructuous consequent on the decree having been passed by the lower Court on 29-4-1997.