By means of this writ petition, the petitioner has challenged the order rejecting his application under Order IX Rule 13 CPC as well as the appeal filed against the said order, which has also been rejected.
The claim of the petitioner is that the petitioner and the respondent are both the real brothers. The respondent-plaintiff had filed a suit being Suit No. 435 of 1993, which was decreed ex parte on 23.5.1994. It is claimed that the suit property was the property of the father of the plaintiff and the defendant. In the plaint the father of the defendant was not made a party. The suit property is a residential house and by means of ex parte decree the plaintiff-respondent had obtained a permanent injunction not to interfere in one portion of that house.
According to the learned counsel for the petitioner, there was no partition effected and the father of the petitioner did not execute any will and died intestate.
For the first time the petitioner-defendant came to know about the aforesaid ex parte decree only when summons on 10.10.2005 were served upon the petitioner in Execution Case No. 12 of 2005. Immediately he contacted his Advocate and moved an application under Order IX Rule 13 CPC along with an application under Section 5 of the Limitation Act, which applications have been rejected on the ground that the father of the petitioner had full knowledge of filing of the suit as he refused to accept the notice sought to be served by the Amin.
Learned counsel for the petitioner submits that the Amin report is the basis to hold that the notices were duly served. Upon this report no signatures have been made and as such, the said report could not be relied upon. It is further submitted that the suit itself was motivated as the property in question was that of his father and without impleading his father, the petitioner was made defendant without notice and got the suit decreed ex parte. It is also submitted that when the suit itself was decreed on 23.5.1994 why the plaintiff took more than 11 years to press for execution by filing Execution Case No. 12 of 2005? The appellate court also, without considering this aspect of the matter, rejected the appeal of the petitioner.
Considering the aforesaid facts and circumstances, it does create a doubt as to reasoning given by the trial court that the notices were served through registered post and according to Order V Rule 19-A CPC it was held that the notices were deemed to be served. That apart, it is curious to note that when the the decree was obtained by the plaintiff why did he not press for execution of the same at the relevant point of time, but he chose to wait for more than 11 years and secondly when the property in question was in the name of the father of the plainitff and the defendant, why did the plainitff only chose to implead the petitioner as defendant?
The matter requires consideration.
Issue notice to the respondent returnable at an early date.
The petitioner shall take steps for service of notice upon the respondent within a week.
List after service of notice.
Till the next date of listing, the operation of the impugned orders dated 8.5.2014 and 14.3.2006 shall remain stayed.
Order Date :- 11.7.2014 SKM