VASU THEVAR Vs. RUKMANI AMMAL

JUDGEMENT

(1.) An interesting and important question arises in this appeal. The appellants who did not appear in Court when Appeal Suit No. 55 of 1998 on the file of Subordinate Judge, Srivilliputhur was called and decided against them, have filed an unnumbered Interlocutory Application under Order 41, Rule 21 of the Code of Civil Procedure to set aside the judgment and decree passed on 30-10-98 and rehear the appeal by giving an opportunity to them to contest the same.

(2.) The brief facts are stated hereunder :- According to the appellants, the suit property bearing Door No. 76-B, Sevabatti Naidu street, Rajapalayam is under the possession and enjoyment of the first appellant herein right from the year prior to 1964 and he had put superstructure thereon. The respondents without any right or title whatsoever filed O.S. No. 233 of 1995 on the file of District Munsif, Srivilliputur, against the first appellant and his wife Balakrishnammal for declaration of title and for possession in respect of the suit property. During the pendency of the suit, his wife died and his children as the legal representatives of the 2nd defendant were brought on record as defendants 3 to 6. All of them contested the suit contending that the plaintiffs have no title and that they have derived title by adverse possession and the suit is barred by res judicata. The Principal District Munsif, Srivilliputhur, by judgment and decree dated 5-12-97 dismissed the suit. The respondents herein preferred an appeal in A.S. No. 55 of 1998 before the lower appellate Court. Due to kidney ailment, the first appellant herein was admitted in Government Hospital, and after operation on 21-7-98 he was discharged on 28-8-98 with an advice to take bed-rest for three months. After getting permission from his doctor, he met his counsel who appeared for them in A.S. No. 55/98 on 10-11-98 and he was informed that when the said appeal came up for hearing on 22-10-98, his counsel reported 'No instructions' and an ex parte decree was passed on 30-10-1998 by the Principal Subordinate Judge, Srivilliputhur. After his counsel reporting 'No instructions' they were not served with any notice of hearing. Immediately on 10-11-98 itself, he filed an application to set aside the ex parte decree along with Medical Certificate. The learned Subordinate Judge, Srivilliputhur without even ordering notice to the respondents on 17-2-99 rejected his application. Aggrieved by the said Order, the appellants have preferred the above Civil Miscellaneous Appeal before this Court.

(3.) The appellants herein have filed the said application before the lower appellate Court to set aside the ex parte decree dated 30-10-88 under Order 41, Rule 21 of the Code of Civil Procedure. The learned Subordinate Judge, Srivilliputhur, after holding that the appellants herein/respondents therein were not set ex parte, rejected their stand and dismissed their applications. The learned Judge has also expressed that in the light of the fact that their counsel reported 'No instructions' and the appeal having been disposed of on merits, the only course would be is to file a second appeal before this Court. The relevant provision under which the appellants have filed appropriate petition is Order 41, Rule 21, CPC, which is reproduced hereunder :-