DEEPAK SINGH Vs. GOPAL KRISHNA

JUDGEMENT

(1.) Both the applications have been filed arising out the same judgment, therefore, the same are being heard and decided with this common order.

(2.) The applicants have filed these MCC under Order 41 Rule 21 of CPC for setting aside the Ex-parte judgment dtd. 9/8/2024 passed in SA No.79/2011.

(3.) Learned Senior counsel for the applicants submits that the final judgment has passed by co-ordinate Bench of this Court on 9/8/2024 without giving opportunity of hearing to the applicant. It is submitted that in the Second Appeal No.79/2011, the sole respondent was expired on 18/12/2020 and the death was declared by the respondent on 2/4/2024. Thereafter, applications under Order 22 Rule 4 and under Order 22 Rule 9 of CPC were filed by the respondent for for setting the abatement and bringing the LRs of sole respondent were filed and vide order dtd. 19/4/2024, notices were issued to the LRs and on the next date of hearing, both the applications were allowed on 16/7/2024. It is also submitted that on 16/7/2024, the notices of the applications were served upon two of the LRs, of sole respondents, but another two daughters have not been arrayed as LRs of respondent, however, they could not appear before the Court and 5/8/2024 and the matter was finally heard and ultimately, the final judgment was declared on 9/8/2024. Therefore, the impugned judgment is exparte and was finally decided without serving the notices upon the of merits appeal to the LRs of sole respondent. However, it is admitted that the notices of applications were served upon the LRs of respondent to Junior advocate who cannot intimated the same to his office due to one or the other reasons. Hence, in view of the settled position of law, the LRs of sole respondents should be served on the appeal and the final judgment should be passed after taking all the LRs on record and giving them opportunity of hearing. It is also submitted that so far as the MCC No.3221/2024 is concerned, the same has been filed on behalf of two daughters namely Neena Singh and Reela Senger of the respondent also for arraying them in the array of LRs of deceased/respondent in appeal.