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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
THE HONBLE MR. JUSTICE B.sREENIvAse"GC;f;:i:§a: _
DATED THIS THE 29"] DAY OF JULY, 2009
BEFORE
MISC. FIRSTAPPEAL No.%g§s31/20~03?(C~p C}:i _:"
Between :
1. Sri. Kare¢5g_._ua,,
Since deceased by his LRS;
1 (a)
1 (b)
Smt. Cikkamma", '
W/0. Late Karigdwda,'*.g A A
Aged about 55 years, 'O
Sri. B.r..K;i.L:f::naé.ha.fi1&ar;:'
-S"/'0; -I,ai§e Ka1''igd'afd-a, "
Aged. ab0ut.V__2'9 y~':'._a'1-'-:'-3__. - '
Both are r'esi'd.i'11g A
No.32-.. 1'53? ZA' CIUSS.
g A Muneswaxfa Black.
" I\fI.aha1akshiI1i'"Layout,
Biangaiovre -- 86.
V. J ayanthi.
D /0. "Late Karigowda,
0'.' Rudrarnurthy,
""iO(d)
Aged abut 38 years,
" R"/at No.3584/B, 2nd A Cross,
'~ . Gayathrinagar,
Bangaiore ~-- 21.
Smt. B.K. Jayashree,
D / 0. Late Karegowda,
W/0. M. Mahendra,
Aged about 33 years,
R/at No.3, 43* Main,
%'
Maruthinagar,
Opp: Mourya School,
Vrushabhavathinagar,
Bangalore --- 74.
(By Sri. B.K. Manjunath, Advocate] V. K
Sri. C. Devaraj,
S/ o. Late Chikkanna,
Major,
R/at No.406, 8th A Main,
lst B Cross, 491 Block, A _ _
3rd Stage, Basaveswara"nag2.ir, _ V ~ V '
Bangalore - 79. C' ' *
M _ '"'e..'"71.;ja,~.i{Es1:>oNoENT
(By Sri. T. sheissgegielraaenixdvoieetear0.!'
"" H as
Miseellaneouesl'aI§irst"£lp'peal filed under order 43 Rule
l(d] of CPC, lagainst._t'he..'iorder dated 02.04.2007 passed
in Miscg.N0[9E37/V99 on the file of the V Addl.City Civil
andffiessions J'udge,rBangalore, dismissing the petition
C 0' °'~11rider 3oi'der_9 Rule 13 R/W Sec.15l of cpc seeking to
set asi.de.t'he" judgment and decree dated 18.06.1996 in
A
T3rii's.VC'.}i/liscellaneous First Appeal coming on for
hear1';1g,this day, B. Sreexiivase Gowda J delivered the
" " -- ._ V fpllowirigh:
JUDGMENT
The appellants have preferred this appeal
challenging the order of the trial Court in dismissing the
Misc. Petition No.96′?/99 both on the ground of delay as
well as on merits.
2. It is the case of the appellants that the
respondent filed a suit in O.S. No.5183/1995 against
Karigowda the husband of appellant No.l(a)
of appellant Nos.l[b) to 1{d) for permanent:”
and managed to obtain an exiparte
Decree against him. Karigowda _to thes’a’me*,
for the first time through th”ee«c:.iI§/*:fitten ‘sta’tefiief1itV”fiied by it
the respondent in thesuit /Qgvlfiled by him
against “”” “th_e”i; resjpon’dent fo’1″*perrnanent injunction.
Immediately’ coupnesselig… made an application on
26/6/l9£V§9′..to’r the certified copy of the said
judgrnentand decree. I-Iis counsel received it
“‘i1o;k:pi:ti/1999 and handed over to him on
1l8_/[ll /p1.99′ 9’ and Misc. 967/99 was filed on
“‘-..20/ll/V__l7-999 and it was filed Within 30 days from the
knowledge of ex~parte Judgment and Decree.
__The suit summons issued to him in O.S. No.5l93/95
it was not served on him. At the time of
alleged service of suit summons at premises
No.33 he was in his office, the trial Court
,
Without considering this aspect of the matter dismissed
the Misc. petition both on the ground of delay as well as
on merits. Hence, they Preferred this appeal. ‘If ”
3. Learned counsel appearing for tlie’
contends that the property purcha’sedg_ by
different from the alleged property’–_of
The respondent in the V.tit1e’=r:.f- 9 suit 9′
O.S.No.5183/95 has ehewnttiheffeaarees of vtheindeceased
Karigowda as No.33 and issued to
him on 12/12’/«i995 to me D.No.33 as if he
was residin.g”jtheJre;’–The”*Ciourt”b’ailiff submitted a report
statinggthat heVVr4e”fused’f’t.oreceive the summons when it
was soughte t’o._be on him on 12/12/1995 at
at vrhicirtyime he was in his office. On the
false refusal shara. the trial Court
placed him:3–.Ve)}t«parte and proceeded to pass the eX~parte
V’~».Judgnient and Decree against him on 18/ 6/ 1987. The
V”‘x_’resp:ondent after obtaining the decree did not file
_pv_e§.Q.S’;'”mN”o:il{i3l’72g/99 against the
respondent for During the
pendency of Misc; Karigowda died on
H /9/ appelllar1ts* “lbeing his L.Rs were
brougllit continued the proceedings.
counsel appearing for the
-‘”~i.,_res’pon§,ientg sub”mits’VKarigowda refused to receive the
to him and the court bailiff had to
with a Shara that he has refused to
receiv’e__:lthe summons and therefore the trial Court
“””.;-ighjlfiy held the service of suit summons on Karigowda
sufficient and passed the Judgment and Decree on
merits. He further submits that the decree obtained by
the respondent against Karigowda being one for bare
%
injunction it cannot be set aside at the instance of his
lega} heirs as no cause of action survives. He further
submits, the Misc. petition is filed after an inordinate
delay and no sufficient cause is shown foi’:–.corid}§niiig’
the said delay and he prays for disiI1_issaI;’o’f it if
5. I have heard the leainedtlcounsel
for the parties and perused«_,:ti°ie impu__gnedv-.ordei’: “it is”?
the specific case of KarigowdaV:.t’l1at*~-afterfihe–..pu’rcashing
the site bearing property”Nc,Vzi;»l:in of 5831 block
Jarakabandelraxifa-l,u, “Bangalore north
taluk from oiiri1er–.VXa)’e’nkatasi?ira1ny under registered
the sale “1980 he constructed a
residentia1″house’;.andit was assigned premises No.32
at cross, Muneshwara Block,
and it is different from the alleged
property of respondent and he came to know about
exparte Judgment and Decree obtained by the
v.”VV.res_pj’:cindent against him for the first time when the
__r.espondent flied written statement in O.S. No.4372/ 99
if disclosing about the eX~parte Judgment and Decree and
immediately his counsel applied for the certified copy of
g.
the Judgment and Decree and fiied the Misc. petition
within 30 days from the date of knowledgee~.V_o£’_t’t..he
eX–parte Judgment and Decree. It is not
the respondent after obtaining__the_exparte–:’_;;ddgn1e11tu it
and Decree on 18/6/1986 end ‘tic.’r_1v”ose
execution petition imrnediateiy for _e:«;ecu_tion”‘-of: the”?
decree. On the other tyearstafte-r the decree
he filed writ petition Karigowda,
Sub–inspector. station D .C.P.
Bangalore; the decree. In the
notice I<:a:~§{ge§vt1etf"'::1'} o.s. No.5183/95 the
address' 'shown as D.No.33 and it was
sought to"be"ser?Jed._:o'ri'1V him at D.No.33, whereas the
Karigowda bears the Door No.32. The
;:jr'oduced by Karigowda ciearly establish
he. fifas't::working in the office of Asst. Executive
Engineer, P.W.D. and he was on duty on 12/12/1995
v."V'.Aa:3.,dj'f:that the Shara written by the court bailiff stating
__that Karigowda refused to take the suit summons is
nothing but false hood. Further in the evidence of the
court bailiff examined as C.W.i, he has stated that he
about the ex parte judgment and decree obtained by
him against Karigowda. if that is so then
petition filed by Karigowda is to be held
within 30 days from the date of Vthegjex; it 2
parte judgment and decree. If the
got a genuine case against"-r..the A'appellants._;"eveh by"?
allowing the Misc. 's'etting"tas.ide:§ the exw
parte judgment and .1Ehe respondent
against arid to the file the
respondentllwlttill 1ff(v'):j'p_ai1:jy.Vl1ardship and all that
will considered only after
providing: an "hearing to the appellants.
The _facts'~.and.Vpcircuiiistances of the case warrant
of zrniscV."petition and setting aside the eX–parte
Decree obtained by the respondent
agilgstxaillgowda in o.s. No.5183/95. The trial Court
comniltted a grave error in holding that the delay in
the misc. petition is not explained and there is no
.,,_St1fficient reason for setting aside the exwparte judgment
and decree passed in O.S.No.5l83/95. The approach of
trial Court is perverse and is liable to be interfered with.
10
Accordingly, the appeal is allowed.
(i) The impugned order dated 2/41/2007 passed in
Misc. No.96′?/99 on the file of V
and Sessions Judge, Bangalore _
of the trial court that;:’theA4a;g3′,o.elia11t
explained the delay. the
are set aside.
(2) The delay V petition is condoned No.96'?/99 is
al’lo{».redil;j:”a’11d ‘g«}fu’d_grn.e1it. ar_a:dmvDecree passed in
aside and the suit is
” restored ”
(3}.The is directed to dispose of the suit
.v.T«O*.:,lSl:No.5183/95 on merits and in accordance
A by providing an opportunity of hearing
z laoth the parties.
Sd/-3,
JUDGE
Lr