JUDGMENT:

1. This Civil Miscellaneous Appeal is preferred impugning order dated 02.09.2009 dismissing I.A. No.1884 of 2008, filed by the petitioner under Order 9 Rule 13 of C.P.C. to set aside the ex-parte decree dated 30.09.2005 in O.S. No.359 of 2005 on the file of the Principal Senior Civil Judge, Guntur (henceforth trial Court).

2. Appellant No.1 was the defendant and the respondent was the plaintiff before the trial Court in O.S. No.359 of 2005. The suit was decreed ex-parte in favour of the plaintiff and subsequently, I.A. No.1884 of 2008 was filed by the defendant seeking to set aside the ex-parte decree.

3. For the sake of convenience, the parties hereinafter will be referred to as they arrayed before the trial Court. During pendency of the appeal, as the sole Appellant died, Appellant Nos.2 to 4, who are sons of the 1st Appellant came on record as his legal representatives.

4. Case of the Appellants/Petitioner/Defendant:

4.1. In the affidavit filed in support of the petition filed before the trial Court, it was averred by the Appellant No.1/defendant that, he is the defendant in the suit filed by his younger brother/plaintiff seeking partition of the suit schedule property, tha