A.V. Chandrahekara, J.

Heard the learned counsel for the petitioners and the learned counsel for the respondent Nos. 1 to 4. Matter is taken up for final hearing with their consent.

2. Present petition has been filed under Articles 226 and 227 of the Constitution of India challenging the order dated 01.08.2013 passed by the learned II Addl. District Judge, D. K., Mangalore in MA No.31/2011 filed under Order-43 Rule-1 of Code of Civil Procedure challenging the order passed in Miscellaneous Case No. 2/2007 passed on 30/07/2011 by the learned Senior Civil Judge and ACJM, Karkala filed under Order-9, Rule-13 of Code of Civil Procedure, confirming the same. Hence, the petitioners are before this; Court.

3. The facts leading to file the present petition under Articles 226 and 227 of the Constitution of India are as follows:

Respondents have filed a final decree petition under Order-20, Rule-18 read with Section 54 of CPC before the Court of then Prl. Civil Judge (Sr.Dn.) and Mangalore. FDP proceedings were initiated in FDP No. 5/2005 before the Civil Judge (Sr.Dn.) Karkala of Udupi District. The schedule property in question is situated within the jurisdiction of Moodabidri of Mangalore revenue taluk. After the receipt of the notice issued by FDP Court, the petitioners herein came to know that a preliminary decree had been passed against them in OS No. 127/1999 which was pending on the file of Court of Prl. Senior Civil Judge, Mangalore. Soon after the same, they applied for the certified copies of the judgment and decree and other connected documents of OS No. 127/1999.

4. All these petitioners had engaged an Advocate by name Sri K. Krishna Moorthy to represent them in the original suit. No written statement had been filed on their behalf. In order to file written statement, Mr. K. Krisha Moorthy, learned Advocate representing them had written a letter to defendant No.3 only, namely Venugopal to come and give instructions, so as to prepare the written statement. The said letter is dated 02.04.2003. In spite of said letter, defendant No.3 did not approach him and as such, he made a submission before the Court that he had no instructions from his clients, i.e. defendants. As such, the Court treated that the defendants had no written statement to be filed. Sri K. Krishna Moorthy was permitted to retire without issuing notices to the defendants therein. Accordingly an ex parte judgment and decree was passed granting ½ share to the plaintiffs therein.

5. Soon after the receipt of these records and other connected papers, the petitioners chose to file a petition under Order-9, Rule-13 requesting the Court to set aside the judgment and decree passed therein. There was delay of 916 days in filing the said petition. After holding an enquiry in regard to condonation of delay, the learned Judge has come to the conclusion that it is barred by time. Accordingly, petition is dismissed, as barred by time. Being aggrieved by the order of the Prl. Senior Civil Judge, Mangalore, an appeal came to be filed under Order 43, Rule-Id of CPC before the District Court, Mangalore and the II Addl. District Judge. D. K., Mangalore chosen to dismiss the application on 01.08.2013 filed in MA No. 31/ 2011.

6. What is argued before this Court by the learned counsel for the respondents herein is that there was an inordinate delay in filing the very petition under Order-9, Rule-13 of CPC. It is further argued that even after receipt of notice from the FDP Court there was sufficient delay in filing the petition and therefore the trial Court has rightly rejected the petition.

7. Per contra Sri. K. Chandranath Ariga, learned counsel for the petitioners has vehemently argued that the delay of 916 days in filing the case of this nature will have to be liberally construed pedantic approach should be adopted by the Court. He has relied upon the decision of Apex Court reported in AIR 1987 SC 1353 in the case of Collector, Land Acquisition, Anantnag v. Katiji and another jud