Appeal against dismissal of Order IX Rule 13 petition to recall an ex parte decree. The decree had been fully executed by sale deed and delivery of possession before the appeal was prosecuted. Noting appellants' dilatory conduct and full execution of the decree, the High Court dismissed the appeal as infructuous.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO. 2059 OF 2017 (CPC)
BETWEEN:
Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka
[BY SRI N. BYREGOWDA, ADVOCATE (PH)]
…APPELLANTS
AND:
NC: 2024:KHC:24519 MFA No. 2059 of 2017
(THE RESPONDENT NOs.2 & 3 ARE MINORS, THEY ARE REP. BY THEIR MOTHER RESPONDENT NO.1)
…RESPONDENTS
[BY SRI H.J. ANANDA ADVOCATE FOR R1(PH); R2 & R3 ARE MINORS REP. BY R1]
THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF CPC,1908 AGAINST THE ORDER DATED 21.10.2016 PASSED IN MISC.NO. 25030/2015 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL, BENGALURU (CCH.NO.29), DISMISSING THE PETITION FILED UNDER ORDER IX RULE 13, READ WITH SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2024:KHC:24519 MFA No. 2059 of 2017
ORDER
Challenging order dated 21.10.2016 passed by XXVIII
Addl. City Civil & Sessions Judge, Mayohall, Bengaluru City (CCH-29) in Misc.no.25030/2015, this appeal is filed.
Learned counsel for respondents submit that present appeal is filed against rejection of miscellaneous petition filed by appellants - defendants under Order IX Rule 13 of C.P.C for recalling ex-parte decree and for restoration of suit.
It was submitted that decree dated 24.07.2014 was put into execution by respondent in Ex.P.no.25007/2015 and on 28.04.2017, same came to be closed after execution of registered sale deed in favour of respondent and delivery of possession as early as on 15.03.2017 and would submit that in view of above, appellants is not duly prosecuting present appeal.
Re-list this appeal on 24.06.2024."
On next date of hearing i.e., 24.06.2024, following order is passed:
"Sri S. Srikanth, learned counsel submits that he has filed vakalath for appellants after obtaining 'NOC' from learned counsel Sri Parameswaraiah D.C.
Registry to delete name of learned counsel Sri Parameswaraiah D.C., from cause list.
It is seen that on previous date of hearing none appeared for appellants.
On hearing counsel for respondents, this Court passed following order:
"None appears for appellants.
Learned counsel for respondents submit that present appeal is filed against rejection of miscellaneous petition filed by appellants - defendants under Order IX Rule 13 of C.P.C for recalling ex-parte decree and for restoration of suit.
It was submitted that decree dated 24.07.2014 was put into execution by respondent in Ex.P.no.25007/2015 and on 28.04.2017, same came to be closed after execution of registered sale deed in favour of respondent and delivery of possession as early as on 15.03.2017 and would submit that in view of above, appellants is not duly prosecuting present appeal.
Re-list this appeal on 24.06.2024."
Sri S. Srikanth, learned counsel for appellants, seeks time on ground that earlier counsel had misplaced appeal papers and he is constructing new file. It is seen that present appeal is against rejection of application filed under Order IX Rule 13 of CPC.
Counsel for respondents has submitted that during pendency of this appeal ex-parte decree was passed, recalling of which was sought, has already been given effect to on 15/03/2017. While reason assigned would permit grant of time, but same can only be on payment of cost of Rs.2,000/- to be paid to respondents through their counsel by next date of hearing and acknowledgement to be filed to said effect.
Re-list on 01.07.2024."
NC: 2024:KHC:24519 MFA No. 2059 of 2017
passed on 24.07.2014 in O.S.no.26860/2011. Referring to order-sheet, it is stated that appellants herein had suffered ex parte decree and Misc.25030/2015 was filed under Order IX Rule 13 of CPC for recalling ex parte decree and restoration of suit. But, it was also dismissed, leading to file this appeal.
NC: 2024:KHC:24519 MFA No. 2059 of 2017
In view of execution of decree in full, appeal is dismissed as having become infructuous.
Psg*
List No.: 1 Sl No.: 62
Sd/JUDGE
1 issue framed by the court
Whether the appeal should be disposed of given the underlying ex parte decree had already been fully executed during pendency?
2 provisions across 1 enactments
Sri Nagaprasad G. Mitta
Smt. R. Manjula
Sri R. Thyagaraj
Dr. Sheela J.
Kum. Manvitha
Kum. Deepthi
Ravi V Hosmani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
