PRAHALLAD SWAIN Vs. MALLIKESWAR SWAMY

JUDGEMENT

(1.) THE order dated 25 -9 -1997 (Annexure -I) passed by the District Judge, Ganjam, Berhampur in Misc. Appeal No. 63 of 1991 is assailed in this Writ Petition filed in the year 2003, i.e. after nine years of the said order. Explaining the delay, it is submitted that the Petitioners who were the Appellants in the aforesaid Misc. Appeal (Defendants in T.S. No. 44/69 of the Court of the then Subordinate Judge, Berhampur) had filed Civil Revision No. 302 of 1997 before this Court challenging the aforesaid order of the District Judge vide Annexure -I and that Revision was disposed of on 11 -11 -2003 as not maintainable whereafter the present Writ Petition was filed.

(2.) THE grievance of the Petitioners is with regard to rejection of a petition filed by them under Order 9, Rule 13 CPC praying to set aside the ex parte decree passed on 31 -3 -1982 in the Title Suit No. 44 of 1969 and registered as MJC No. 85 of 1982. When the said MJC was sub judice, the Court of the then Subordinate Judge started functioning at Chatrapur and the matter was transferred from Berhampur to Chatrapur Court and registered as MJC No. 70 of 1983. As the Petitioners could not take steps in the said MJC the same was dismissed for default on 11 -7 -1985. Being aggrieved by the said order dated 11 -7 -1985 the Petitioners preferred Civil Revision No. 148 of 1989, i.e. after four years of the said order, before this Court mainly on the ground that they were not aware of the order of dismissal of the MJC. The said Civil Revision No. 148 of 1989 was dismissed as withdrawn on 9 -10 -1991 as the same was not maintainable as per the provisions of Order 43, Rule 1 (d) CPC. While dismissing the Revision this Court however granted liberty to the Petitioners to file a Misc. Appeal within three weeks after the Puja holidays. Thereafter the Petitioners had filed Misc.Appeal No. 63 of 1995 before the District Judge, Ganjam, Berhampur taking the plea that after transfer of MJC No. 85 of 1982 from, the Court at Berhampur to the Court at Chatrapur, no notice was ever served upon them and as such they had no knowledge of such transfer. While they were all along waiting for notice from Court, all of a sudden could know about dismissal of the MJC on 11 -11 -1988. Thereafter they applied for a certified copy of that order and preferred Civil Revision before this Court. As the said Civil Revision filed was not maintainable under law, the same was withdrawn from this Court and a Misc.Appeal was filed before the District Judge. It is submitted that unless the impugned order is quashed great prejudice will be caused to the Petitioners.

(3.) IF the plea taken by the Petitioners that their advocate did not inform them is accepted, and so also the submission that they came to know about the dismissal order only on 11 -11 -1988, and obtained certified copy of the said dismissal order on 17 -11 -1988, the period taken by them from 17 -11 -1988 till 8 -2 -1989, i.e. about three months, was not explained.