Makunda Prusty vs Sashimani Sahoo And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 25th April, 2012 (Annexure-2) passed by learned 2nd Additional District Judge, Puri in F.A.O. No.18/3 of 2010/09 is under challenge in this writ petition, whereby order dated 17th December, 2008 passed by learned Civil Judge (Senior Division), Nimapara in C.M.A. No.45 of 2007 filed under Order IX Rule 13 CPC, has been confirmed.

Mr. Mohapatra, learned counsel submits that the Petitioner was Defendant No.1 in T.S. No.87 of 1994 filed by the Opposite Parties for partition. No notice of the suit was ever served on the Petitioner at any point of time. But practising fraud on Court, the Opposite Parties managed to get the notice on the Petitioner sufficient. A fraud was played on Court by filing Vakalatnama on behalf of the Petitioner forging his signature. It is his submission that the Petitioner had no knowledge about the ex parte decree of partition. Only when the process server went to the spot on 23rd April, 2003 to take delivery of possession in Execution Case No.51/4 of 2000/1999, the Petitioner came to know about the ex parte decree. As such, an application under Order IX Rule 13 CPC was filed in CMA No.45 of 2007 to set aside the ex parte decree. Learned trial Court without appreciating the matter in its proper perspective, dismissed the application on 17th December, 2008. Assailing the same, the Petitioner preferred the aforesaid appeal, which has also been dismissed. Hence, this writ petition has been filed.

It is his submission that the Opposite Parties are not the joint family members of the Petitioner. They have no semblance on right, title and interest over the suit property. By practising fraud on Court, they managed to get the property partitioned and are enjoying a part of the suit property to which they are not entitled to. He further submits that when the Petitioner did not receive any summon from the Court in the suit for partition, he should be given an opportunity to contest the suit by filing written statement to protect his right.

In support of his case, Mr. Mohapatra, learned counsel for the Petitioner relied upon the decision in the case of Aviation Travels Pvt. Ltd. –v- Bhavesha Suresh Goradia and others, reported in 2020 (I) CLR (SC) 785, wherein it is held that an opportunity of hearing should be given to the party applying for setting aside ex parte decree to protect his right. He, therefore, prays for setting aside the impugned order under Annexure-2 and to allow the petition under Order IX Rule 13 CPC by setting aside the ex parte decree.

Heard Mr. Mohapatra, learned counsel for the Petitioner.

None appears for the Opposite Party No.3 although he is represented through learned counsel.

The order passed by learned Civil Judge (Senior Division), Nimapara in CMA No.45 of 2007 filed under Order IX Rule 13 CPC has not been filed along with the writ petition. Thus, this Court is not in a position to examine the correctness of the order.

On perusal of the order passed in the appeal under Annexure-2, it is ascertained that the Petitioner has categorically stated in his petition under Order IX Rule 13 CPC that he came to know about the ex parte decree only on 23rd April, 2003, when the process server went to the spot for delivery of possession of the suit land in Execution Case No.51/5 of 2000/99. However, the petition under Order IX Rule 13 CPC was filed on 19th July, 2007, i.e., more than four years after. The explanation provided by the Petitioner for the delay was that he was under impression that the ex parte decree would be set aside by filing a petition in the execution proceeding. Learned appellate Court on scrutiny of record, observed that no such petition was available in the execution proceeding. It further appears that the petition under Order IX Rule 13 CPC was filed to set aside the final decree passed in T.S. No.87 of 1994. No prayer to set aside the ex parte preliminary decree was made. A plea was taken by the Petitioner that no summon was served on him in the suit. But, Ext.C is the service report in which it is endorsed by the process server that the notice was served by affixture as the Petitioner refused to receive the same. There is no material on record to disbelieve the endorsement of the process server made on Ext.C. Further the Plaintiff filed an affidavit in support of the proof of service of notice on the Petitioner, which was marked as Ext.G. It is observed by learned appellate Court that no convincing material is available to disbelieve the same. The Petitioner has not taken any step to prove that the notice was not served on him by challenging Exts.C and G. Thus, learned appellate Court on assessment of evidence available on record came to hold that the notice is duly served on the Petitioner.

Endorsement on the service return was made by the process server stating that the Petitioner refused to accept the notice, which has not been successfully challenged either before learned trial Court or before learned appellate Court. When on assessment of fact, the fact-finding Courts came to conclusion that notice was duly served on the Petitioner, this Court in exercise of power under Article 227 is not inclined to interfere with the same in absence of any material contrary to it.

There is no dispute in the ratio decided in the case of Aviation Travels Pvt. Ltd. (supra) relied upon by learned counsel for the Petitioner. But, the same is not applicable to the facts and circumstances of this case.

In view of the discussions made above, this Court is of the considered opinion that the Petitioner has not made out any case to set aside the ex parte decree passed in T.S. No.87 of 1994.

Accordingly, the writ petition being devoid of any merit stands dismissed.

Urgent certified copy of this order be granted on proper application.

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