IMPORTANT POINT
Where there has been appeal against decree passed ex-parte and appeal has been disposed of on any ground other than withdrawal, application for setting aside ex-parte decree will not lie.

JUDGMENT

ABHAY S. OKA, J.

1. Leave granted.

2. The appellant, who is the original first defendant, has taken an exception to the judgment and order dated 22nd March 2016 passed by the High Court of Karnataka in an appeal being R.F.A.No.494 of 2016 preferred under Section 96 of the Code of Civil Procedure, 1908 (for short ‘CPC’).

3. The first respondent who is the original plaintiff, filed a suit in the City Civil Court at Bangalore (now Bengaluru) for a declaration that he was the absolute owner of the property subject matter of the suit comprising of Site No.28 at BTM Layout, Bangalore. Site No.28, according to the first respondent, consisted of lands bearing survey nos.56, 57 and 60 of Bilkenahalli Village and survey nos.61, 71 and 72 of N.S. Palya Village, Bangalore South Taluk, Bangalore. Site No.28 is hereinafter referred as “the suit property”. Apart from claiming a declaration of ownership, the first respondent contended that a structure erected by the appellant on the suit property was illegal and therefore, a decree was sought for removal of the structure. The other two respondents in this appeal were the second and third defendants respectively. The learned Judge of the City Civil Court at Bangalore, by his judgment and order dated 19th September 2015, passed a declaratory decree by declaring the first respondent as the owner of the suit property. A decree was also passed directing the appellant and the second respondent to remove the structure on the suit property. The appellant and the second respondent were also restrained by a decree of perpetual injunction from entering in the suit property and from interfering with the peaceful possession and enjoyment thereof by first respondent. In paragraph 20 of the said judgment, the learned trial Judge observed that the appellant and second respondent did not appear despite the service of summons and did not contest the suit. By the impugned judgment and order, the High Court confirmed the decree on merits.

4. In support of the appeal, apart from raising various contentions on merits of the decree, the learned counsel for the appellant Shri Anand Sanjay M. Nuli urged that appellant’s address mentioned in the cause title of the suit was incorrect and on the date of institution of the suit, he was residing at another address set out in the grounds of appeal. Therefore, the suit summons was not duly served upon the appellant.

5. The learned counsel appearing for the appellant submitted that the High Court proceeded on erroneous basis that the issue regarding the failure to serve the suit summons can be agitated only in an application filed for setting aside ex parte decree by invoking Rule 13 of Order IX of CPC. The submission of the learned counsel appearing for the appellant is that on the basis of the record of the suit, the appellant could always point out that the service of summons was not effected or that it was otherwise illegal to proceed ex parte against him. He would further submit that as can be seen from the rejoinder filed by the appellant, a multi-storeyed building consisting of ground and four upper floors has been constructed by the appellant on the suit property long back and the building is occupied by the purchasers of the premises therein. He submitted that there is a very drastic decree passed for demolition of the said building constructed on the suit property without impleading the purchasers of the premises therein as parties. He would, therefore, urge that by setting aside the decree of the trial court, the suit be remanded for fresh adjudication.

6. Shri Arvind Kamath, the learned senior counsel appearing for the first respondent-plaintiff submitted that the third respondent-Bangalore Development Authority was the owner of the suit property and that the first respondent is the allottee of the suit property from the third respondent. He submitted that the sale deed on the basis of which the appellant is claiming ownership is in respect of some other prope