Allowed

Shri Sunilkumar S/O Devagouda v. Sudhakar Sawant Isapure

Karnataka HC7 Dec 2022MFA/100998/2015

Case brief

AI extract

What is this about?

Allowed appeal holding that limitation for setting aside an ex-parte decree under Order X Rule 13 CPC runs from date of actual knowledge via execution notice, not decree date. Set aside lower court order, restored suit to file, and ordered expedited disposal.

What did the court decide?

Impugned order dated 06.03.2015 set aside; Civil Misc.1/2011 allowed; Suit O.S.no.58/2008 restored.

Shri Sunilkumar S/O Devagouda Vs Sudhakar… — Contract and Commercial Disputes | Karnataka HC (2022)

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MFA No. 100998 of 2015

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 7^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.NATARAJ

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MISCELLANEOUS FIRST APPEAL NO. 100998 OF 2015 (CPC)

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BETWEEN:

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SHRI SUNILKUMAR S/O DEVAGOUDA

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@ SHASHIKANT PATIL,

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SINCE DECEASED BY HIS LEGAL HEIRS,

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1A. SMT. SAVITA W/O. SUNILKUMAR PATIL,

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AGE. 56 YEARS, OCC. PRIVATE SERVICE, R/O. BHOJ, TAL. CHIKODI,

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DIST. BELAGAVI-591263

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1B. MISS. NIKITA D/O. SUNILKUMAR PATIL AGE. 25 YEARS, OCC. STUDENT. R/O. BHOJ, TAL. CHIKODI, DIST. BELAGAVI-591263

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…APPELLANTS

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(BY SRI. ANAND ASHTEKAR, ADV., AND SRI. SHEKARAGOUDA M NAGANURI, ADVOCATES)

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AND:

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SUDHAKAR SAWANT ISAPURE, AGE:49 YEARS, OCC:LEGAL PRACTITIONER AND AGRICULTURE, R/O: ANOOP APARTMENT, MIRAJ-416410, NOW R/AT: PRATIK RESIDENCY NEAR GANESH HOUSING SOCIETY, MIRAJ 416 410, DIST: SANGLI, STATE: MAHARASHTRA.

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…RESPONDENTS

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MFA No. 100998 of 2015

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(BY SRI. SHARAD M PATIL, ADV., FOR SRI. SANGRAM S KULKARNI, ADV., FOR R1

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This MFA IS FILED UNDER ORDER XLIII RULE 1(d) READ WITH SECTION 104 OF CPC PRAYING TO SET ASIDE THE ORDER DATED 06.03.2015 PASSED BY THE SENIOR CIVIL JUDGE, CHIKODI IN CIVIL MISC.1/2011; ALLOW THE APPEAL WITH COSTS THROUGUOUT BY GRANTING CIVIL MISC.1/2011 AND THEREBY SETTING ASIDE THE JUDGMENT AND DECREE DATED 27.10.2009 PASSED BY THE CIVIL JUDGE SENIOR DIVISION, CHIKODI IN O.S.NO.58/2008.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant has challenged the order dated 06.03.2015 passed by the Senior Civil Judge, Chikodi in Civil Misc.No.1/2011 by which his petition under Order X Rule 13 of CPC was rejected.

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A suit in O.S.No.58/2008 was filed for specific performance of agreement of sale dated 18.07.2005 allegedly executed by the deceased appellant. It is seen that the notice of the suit was issued to the appellant who allegedly refused to receive it, whereupon the deceased appellant was served through substituted service by way of publication in ‘Tarun

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MFA No. 100998 of 2015

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Bharat’ Marati Daily of Kolhapur edition. Since the deceased appellant did not contest the proceedings, the Trial Court after recording the evidence, decreed the suit in part and directed the deceased appellant to refund a sum of Rs.9,00,000/- along with interest @9% per annum. The decree was sought to be enforced in E.P.No.45/2010. The deceased appellant thereafter filed a petition under Order X Rule 13 of CPC belatedly and filed an application under section 5 of the Limitation Act for condonation of delay of 01 year 2 months in filing the petition. It was contended that the petition under Order X Rule 13 of CPC was filed within 90 days from the date of service of notice in E.P.No.45/2010. The miscellaneous petition was contested by the respondent herein, who contended that the delay was deliberate in as much as the notice issued to the deceased appellant was refused and thereafter substituted service was taken out. He submitted that the appellant had admitted in the course of his cross-examination that he was residing in the address mentioned in the cause title and therefore, the deceased-appellant took the risk of not contesting the proceedings. In reply, the learned counsel for the appellant submitted that the substituted service is not treated as due

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MFA No. 100998 of 2015

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service in view of explanation to Article 123 of the Limitation Act. He, therefore, contends that the decree passed by the Trial Court deserved to be recalled, since the same was without proper notice to the appellant. The Trial Court after considering the oral and documentary evidence rejected the application for condonation of delay and consequently dismissed the Miscellaneous Petition on the ground that the appellant had not made out any good grounds to recall the ex-parte judgment and decree. Being aggrieved by the same, the present appeal is filed.

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During the pendency of the appeal, the appellant died and his legal representatives were brought on record. Learned counsel for the legal representatives of deceased appellant submitted that the deceased appellant was placed exparte as he did not enter appearance even after substituted service through publication. He submitted that the deceased appellant was residing at Bhoj village where ‘Tarun Bharat’ Marathi Daily had no circulation. He, therefore, contended that the impugned judgment and order passed by the Trial Court has to be set aside. He further submitted that there was no actual delay in filing the miscellaneous petition since he came

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MFA No. 100998 of 2015

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to know about the ex-parte judgment and decree only after he received a notice in E.P.No.45/2010 and the petition under Order X Rule 13 of CPC was filed within 90 days from the said date.

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Per contra, learned counsel for the respondent submitted that the proceedings of the Trial Court would disclose that the notice issued through RPAD was refused by the appellant herein and it is only thereafter substituted service was ordered despite which the appellant did not enter appearance. He, therefore, submitted that the appellant has taken the risk of not contesting proceedings.

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I have considered the submissions made by the

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learned counsel for the parties.

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The Trial Court records disclose that the notice issued to the appellant through RPAD returned unserved as ‘refused’. The evidence of the appellant recorded on I.A. for condonation of delay discloses that the appellant was residing in the address mentioned in the cause title of the suit. He has not disclosed as to when he had discontinued the residing at the said address or when he started residing at Bhoj village.

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MFA No. 100998 of 2015

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Therefore, the contention of the learned counsel for the respondent that the appellant had refused to receive the notice issued through RPAD cannot be disbelieved. However, the Trial Court did not feel consider it safe to place the appellant exparte but ordered to serve the appellant through substituted service by publication in a local daily. Therefore, the respondent cannot make much out of the appellant refusing to receive the service.

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As rightly contended by the learned counsel for the appellant, the substituted service for the purpose of setting aside a decree passed ex-parte cannot be deemed to be due service. Therefore, the limitation prescribed under Article 123 of the Limitation Act commences from the date when the appellant had knowledge of the decree, which is obviously the date when the appellant was served with the notice in E.P.No.45/2010. The Trial Court did not consider the case from this stand point but held that the application for setting aside the ex-parte decree was belated. It had reckoned the time from the date of the decree till the date of filing the petition which was unwarranted. Courts of law are meant to do justice between the parties and cannot allow one of them to take

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MFA No. 100998 of 2015

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advantage of a mistake in the application of law. In that view of the matter, the impugned order passed by the Trial Court dismissing the Civil Misc.No.1/2011 deserves to be set aside.

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The suit was decreed ex-parte on 27.10.2009 and the Miscellaneous was filed during January-2011 and the proceedings are pending before this Court from the year 2015. Therefore, it is desirable that the Miscellaneous Petition itself is disposed off to avoid wastage of judicial time in view of the peculiar facts and circumstances of the case. Hence, the following:

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ORDER

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This appeal is allowed and the impugned order dated 06.03.2015 passed by the Senior Civil Judge, Chikodi in Civil Misc. No.1/2011 is set aside. The Civil Misc.1/2011 on the file of Senior Civil Judge, Chikodi is allowed.

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Consequently, the proceedings in O.S.No.58/2008 is restored to file. The Senior Civil Judge, Chikodi, shall dispose off the suit as expeditiously as possible which shall not be later than one year from the date of framing of issues in the suit.

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MFA No. 100998 of 2015

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This order, however, shall be subject to payment of Cost of Rs.10,000/- payable by the appellant to the respondent before the Trial Court in O.S.No.58/2008, on the date of hearing.

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Parties shall appear before the Senior Civil Judge, Chikodi on 20.01.2023 on which day, the appellant shall file his written statement. The Trial Court shall frame issues within a period of one month thereafter and dispose off the suit as stated above.

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Sd/JUDGE

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YAN

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List No.: 1 Sl No.: 17

Shri Sunilkumar S/O Devagouda v. Sudhakar Sawant Isapure

Case brief

What is this about?

What did the court decide?

Shri Sunilkumar S/O Devagouda v. Sudhakar Sawant Isapure

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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