B A Bhavi Kumar vs Ajjamada S Muthanna

B. Manohar

The appellant being aggrieved by the order dated 1.9.2007 made by the learned Civil Judge (Sr.Dn.), Virajpet, dismissing I.A.I for condonation of delay in filing the civil miscellaneous petition has filed this appeal. The case of the appellant is that the respondent filed OS No. 137/2003 seeking for recovery of a sum of Rs. 2,88,750/- with future interest at the rate of 14.5% p.a. Since the notice was not served on him in the said suit, he could not represent and contest the matter. The suit came to be decreed on 3.9.2004 directing the appellant herein to pay a sum of Rs. 2,87,500/- with costs and interest at 14.5% p.a. from the date of suit till realisation. Being aggrieved by the said judgment and decree, the appellant preferred a civil miscellaneous petition before the learned Civil Judge (Sr.Dn.), Virajpet, and I.A.No. I for condonation of delay in filing the civil miscellaneous petition contending that he was not served with copy of the plaint in OS No. 137/2003. He was not aware of the passing of the judgment and decree in said suit. He contended that only on 20.6.2005. he came to know about the exparte decree made in O.S.No. 137/2003. Immediately, he filed the miscellaneous petition seeking for setting aside the judgment and decree dated 3.9.2004 made in O.S.No. 137/2003 and afford an opportunity to contest the matter, and also filed application I.A.No. I for condonation of delay in filing civil miscellaneous petition.

The contesting respondent in the miscellaneous petition filed the objections and contended that the appellant was served with notice in O.S.No. 137/2003 and he made available the records before the Court below to show that he was served with notice. Further, he contended that in Ex.No. 193/2004 filed by the respondent herein for execution of the judgment and decree made in O.S.No. 137/2003, the appellant appeared through his Advocate and paid a sum of Rs. 5,000/- on 26.2.2005 and sought for time to pay the balance amount. However, instead of paying the balance amount, he filed the miscellaneous petition contending that he came to know about judgment and decree only on 20.6.2005 and filed the miscellaneous petition on 22.7.2005 and (sic) for setting aside the judgment and decree made in O.S No. 137/2003 and sought for dismissal of I.A.No. I and also civil miscellaneous petition.

On the basis of the pleadings of the parties, the learned Civil Judge framed necessary issues in the miscellaneous petition. The petitioner got himself examined as PW1. No document has been marked on his behalf. On the other hand, the respondent got himself examined as RW1 and got marked the documents as Exs.R1 arid R2 i.e. certified copy of the order-sheet in Ex.Case. No. 193/2004 and certified copy of the memo in the execution case. The learned Civil Judge (Sr.Dn.) by his order dated 1.9.2007 dismissed I.A.I for condonation of delay in filing the miscellaneous petition and consequently dismissed the miscellaneous petition. Being aggrieved by the same, the appellant has filed this M.F.A.

This Court by its order dated 27.3.2008 directed the appellant to deposit 30% of the decretal amount. In spite of granting sufficient time, the amount has not been deposited. This Court by its order dated 13.6.2008 vacated the interim order granted on 27.3.2008.

The records clearly disclose that the respondent filed OS No. 137/2003 seeking for recovery of the amount of Rs. 2,88,750/- with 14.5% p.a. The suit summons was served on the appellant. In spite of service of notice, the appellant has not engaged any counsel or contested the matter. He was placed exparte and the decree has been passed on 3.9.2004. Being aggrieved by the same, he filed the miscellaneous petition along with I.A.I for condonation of delay in filing the miscellaneous petition. The learned Civil Judge (Sr.Dn.) after recording the evidence of the parties held that the appellant has not made out a case for condonation of delay in filing the miscellaneous petition. It is noticed that the suit summons was already served on the appellant and he has not represented the suit Further, copy of the execution petition was also served on him and he paid a sum of Rs. 5,000/- on 26.2.2005 and taken time to pay the remaining amount. Instead of paying the balance amount, he filed the miscellaneous petition along with I.A.I for condonation of delay. The learned Civil Judge (Sr.Dn.) after recording the evidence of the parties dismissed. the application in I.A.I for condonation of delay and consequently dismissed the miscellaneous petition. Being aggrieved by the same, the present appeal has been filed. I find trial the records clearly demonstrate the service of suit summons on the appellant. In spite of the service of the same, he remained exparte and exparte decree has been passed in OS No. 137/2003 by the trial court. Therefore, I find no error in the order passed by the learned Civil Judge (Sr.Dn.). Virajpet. Accordingly. I pass the following:

ORDER

The appeal is dismissed. No order as to costs.