Order 9 Rule 13 of CPC allows setting aside of exparte decree if appeal is disposed as withdrawn. Defendants can maintain a petition under Order 9 Rule 13 of CPC if they enter appearance but do not contest the case.

JUDGMENT

M.I.Arun, J. - Aggrieved by the judgment dated 20.12.2014 passed in M.A.No.20/2011 by Principal District Judge, Kolar, the respondents therein have filed this Civil Revision Petition.

2. The case of the petitioners is that they filed O.S.No.143/1997 against the respondents herein before Additional Civil Judge, Senior Division, Kolar for a decree of partition and separate possession of 1/4th share in the suit schedule properties.

3. The respondents entered appearance in the said suit through their advocate but failed to file the written statement, despite granting several opportunities.

4. The suit was posted for trial. During the course of which, first petitioner got himself examined as PW-1 and got marked Exs.P.1 to P.18. The respondents did not cross examine PW-1 nor they led in any evidence.

5. The trial Court by its judgment dated 18.04.2001, decreed the suit of the petitioners as prayed for.

6. More than three years later, the respondents herein challenged the judgment and decree dated 18.04.2001 passed in O.S.No.143/1997 by filing an appeal in R.A.No.31/2004 on the file of Principal District Judge, Kolar. On 24.08.2004, the respondents herein filed a memo praying that the said appeal be dismissed as not pressed. Accordingly, R.A.No.31/2004 came to be dismissed.

7. Thereafter, the respondents herein filed a petition under Order 9 Rule 13 of CPC praying that the judgment and decree passed in O.S.No.143/1997 dated 18.04.2001 be set aside. An application under Section 5 of the Limitation Act was also filed praying for condonation of delay in filing the said petition. The said application was registered as Misc.No.72/204 on the file of Senior Civil Judge, Kolar, which was later renumbered as Misc.2/2011 on the file of the Senior Civil Judge at Malur. The said Miscellaneous application came to be dismissed by an order dated 27.06.2011.

8. Challenging the said order of dismissal, the respondents herein filed an appeal in M.A.No.20/2011 on the file of Principal District Judge, Kolar. Since there was a delay in filing the said appeal, an application for condonation of delay was also filed by the respondents under Section 5 of the Limitation Act. The Appellate Court after hearing the parties was pleased to allow M.A.No.20/2011 and the suit in O.S.No.143/1997 was restored to file. Aggrieved by the said order in M.A.No.20/2011, the petitioners herein have preferred the said revision petition.

9. Heard the learned counsel for the petitioners. Inspite of service of notice, respondents are absent and unrepresented.

10. It is the contention of the petitioners that respondents herein entered appearance in O.S.No.143/1997 through their advocate but failed to file the written statement or cross examine PW-1 and did not advance their arguments. Thus, they cannot be considered as Exparte and they are not entitled to prefer an application under Order 9 Rule 13 of CPC.

11. It is further contended that once the respondents herein filed an appeal challenging the judgment passed in O.S.No.143/1997 and withdrew it without reserving the liberty to file a Miscellaneous application under Order 9 Rule 13 of CPC, the same cannot be entertained.

12. That there was a delay in filing M.A.No.20/2011 also and the said delay has not been condoned and without condonation of such delay, the judgment has been passed and hence, the same is erroneous. It is also contended that even otherwise, the Appellate Court grossly erred in interfering that well reasoned and discretionary order passed in M.A.No.20/2011 and on the said grounds, the petitioners have sought for setting aside the judgment dated 20.12.2014 passed in M.A.No.20/2011 by Principal District Judge, Kolar and restore the order dated 27.06.2011 passed in Misc.No.2/2011 by Senior Civil Judge, Malur, by allowing civil revision petition.

13. The question that arises for consideration in this Civil Revision Petition is that, under the given facts and circumstances of the case, whether the respondents