Decided on April 13,1972



- (1.) The petitioner and two others are decree-holders in O. S. No. 343 of 1955 on the file of the court of the district Munsif, Srungavarapukota. They filed E. P. No. 146 of 1970 for execution of the decree on O. S. No. 343 of 1955. At that stage an obstruction was caused by the defendants to the delivery of possession. The decree-holders then filed E. A. No. 84 of the 1971 complaining the obstruction and for removal of the same. That application was opposed by the respondents by filing a counter. After several adjournments, the application E. A. No. 84 of 1971 stood posted for final hearing on 4.10.1971. on that date neither the respondents nor their counsel was present. They were, therefore, set ex parte and the petition for removal of the obstruction was allowed, and the delivery of the suit property was directed to be effected. Delivery was effected on 11.10.1971. two days later i.e., on 13.10.1971, the respondents filed E. A. No. 144 of 1971 under order 21, Rule 105 of the code of Civil Procedure for setting aside the Ex parte order passed in E. A. No. 84 of 1971. In the affidavit filed in support of the said application E. A. No. 144 of 1971 was alleged that they had engaged Sri B. Sambamurthy as their counsel, that their counsels father died on 3.10.1971 in Chodavaram, that he had gone away to that place, that till that date he had not returned, that they came to their advocates office on 11.10.1971 and learnt that their advocate had gone away to Chodavaram, that their petition was dismissed on 4.10.1971, that on 4.10.1971, their Advocate could not be present when E. A. No. 84 of 1971 was called, that they were set ex parte and the petition was allowed, that their absence on 4.10.1971 was not wilful and therefore the ex parte orders passed on 4.10.1971 should be set aside and the petition restored and reheard on merits.
(2.) A counter was filed on behalf of the petitioners stating that the respondents were present on that date and the allegation that they were not present is not true and there are no grounds for setting aside the ex parte order. It is, however, not disputed that the respondents counsels father died on 3.10.1971 and that he had gone to Chodavaram. It was also contended that delivery having been effected on 11.10.1971 the application filed under order 21, Rule 97, Civil Procedure Code could not be restored and re-heard and that the petition for setting aside the ex parte order was not maintainable.
(3.) The lower court on the consideration of the averments in the affidavit and the counter-affidavit held that in the circumstances stated in the affidavit there were just grounds to set aside the ex parte order. The contentions that as delivery was already effected the respondents should file a separate application under Order 21, Rule 100, Civil Procedure Code and that the application for restoration and for setting aside the order in E. A. No. 84 of 1971 was not maintainable, were however rejected. Accordingly the Lower court allowed E. A.No.144 of 1971 setting aside the ex prate order.;

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