- (1.)This appeal is filed calling in question the order dated 9.1.2009 in Misc.P.No.406/2004 on the file of the XII Additional City Civil Judge, Bengaluru City (for short, 'civil Court'). The appellant has filed the petition in Misc.P.No.406/2004 under Order IX Rule 13 of Code of Civil Procedure, 1908 for setting aside of the decree dated 14.3.2002 in O.S.No.7172/1996. The civil Court by the impugned order dated 9.1.2009 has dismissed the Misc.P.No.406/2004. The appellant is aggrieved by the exparte judgement and decree dated 14.3.2002 in the suit in O.S.No.7172/1996 filed by the third respondent as the next friend and mother/natural guardian of the first and second respondents. This suit in O.S.No.7172/1996 is decreed declaring that the first and second respondents are entitled for half share in the 1/3rd share in the suit item Nos.1 and
(2.)of Schedule 'A' properties. 2. The appellant has filed the miscellaneous petition in Misc.P.No.406/2004 for setting aside of the civil Court's judgement dated 14.3.2002 contending that she was not served with suit summons in O.S.No.7172/1996, and she had no knowledge of the suit until much after the civil Court's judgment. In fact, the appellant is specific that she came to know about the suit in O.S.No.7172/1996 only in the month of May 2004 when the officers of the Corporation came to the house and informed about the Court's order.
(3.)The appellant in support of the petition for setting aside of the judgment and decree dated 14.3.2002, has examined herself as PW.1. The civil Court has dismissed the petition by the impugned order observing that the summons issued to the appellant was served on her mother, the fifth respondent, who is presently no more. The appellant, who even according to her own testimony was close to her mother, undeniably would have knowledge of initiation of the suit. Therefore, it cannot be reasonably inferred that the appellant did not have notice of the suit until the month of May 2004. The civil Court has also observed that the appellant's grand mother and the mother were served and they did not contest the suit. The civil Court has also dismissed the petition on the ground that the suit instituted in the year 1996 is disposed of in the year 2002 after six years and claim for partition is pending in the final decree proceedings.