IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.6676/2019 BETWEEN:
MR.B.SELVARAJ S/O LATE BALASWAMY AGED ABOUT 57 YEARS REPRESENTED BY HIS GPA HOLDER SRI STANI SLAUS A.
S/O C.AROGYASWAMY AGED ABOUT 37 YEARS R/AT NO.116, MARIA NILAYA MEGHANAPALYA, KALYAN NAGAR BANGALORE – 43 …APPELLANT (BY SRI RAMACHANDRA G.BHAT, ADVOCATE) AND:
1. SRI A.MARIYAPPA S/O LATE ANNAYAPPA AGED ABOUT 52 YEARS R/AT BASAVANAPURA VIRGONAGARA POST BANGALORE – 49 2. MR.THOMASBALASWAMY S/O LATE BALASWAMY AGED ABOUT 61 YEARS R/AT NO.8, 7TH CROSS SIDDARTHA SCHOOL ROAD LINGARAJAPURAM ST.THOMAS TOWNPOST BANGALORE – 84 …RESPONDENTS (BY SRI JAYAKUMAR S.PATIL, SENIOR COUNSEL FOR SRI RAJESH GOWDA, ADVOCATE FOR C/R1;
SRI K.C.MAHESH, ADVOCATE FOR R2) THIS MFA IS FILED UNDER ORDER 43(1)(d) OF CPC, AGAINST THE ORDER DATED 04.07.2019, PASSED IN MISC.NO.25154/2018, ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BENGALURU (CCH-29), DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T First respondent has filed O.S.No.27290/2012 before the trial court against the present appellant for specific performance of agreement alleging that the appellant though has executed an agreement of sale in respect of suit property failed to execute the sale deed.
2. In the plaint, the appellant was arrayed as defendant represented by his alleged General Power of Attorney Holder - respondent No.2 herein. The second respondent did not contest the suit. Therefore, the suit was decreed exparte on 14.09.2017.
3. The first respondent filed Execution Petition No.25043/2018 against the appellant to execute the aforesaid exparte decree. Then the appellant filed Misc.Petition No.25154/2018 under Order IX Rule 13 CPC against both the respondents herein alleging that he was not served with the suit summons and respondents-1 and 2 in collusion with each other managed to get the exparte decree.
4. Since there was delay in filing the said miscellaneous petition, the appellant filed I.A.No.1 for condonation of delay. The copy of the order sheet in Misc.Petition No.25154/2018 made available for perusal of this court shows that the trial court without adjudicating on I.A.No.1 for condonation of delay proceeded to record the evidence, heard the parties and dismissed the main petition itself by the impugned order.
5. The trial court holds that the appellant was not a party to the suit but his Power of Attorney Holder i.e., respondent No.2 was a party, therefore, he cannot maintain a petition for setting aside the exparte decree.
6. The impugned order suffers infirmity both on the ground of proceeding to adjudicate the main matter without considering the application for condonation of delay as well as dismissing the petition on the ground that appellant cannot maintain the petition. Therefore, the impugned order requires to be set aside and the matter requires to be remanded to the trial court for consideration of I.A.No.1 filed for condonation of delay and the main matter afresh.
Therefore, the appeal is allowed. The impugned order dated 04.07.2019 in Misc.Petition No.25154/2018 passed by the XXVIII Addl.City Civil and Sessions Judge, Mayo Hall, Bangalore (CCH No.29), is hereby set aside.
The trial court shall hear on I.A.No.1 filed in the said case and the main petition in the light of the observations made above.
To avoid further delay, parties are hereby directed to appear before the trial court on 07.11.2019 without any further notice.
There shall be stay of further proceedings in Execution Petition No.25043/2018 till 07.11.2019. Liberty is reserved to the appellant to move for stay on his appearance before the trial court.
In view of disposal of the appeal, I.A.Nos.1/2019 and 2/2019 do not survive for consideration and stood disposed of.
Sd/- JUDGE KNM/-