1. Civil Miscellaneous Appeals filed against the fair and decreetal order dated 9.12.2011 and 10.12.2011 in unnumbered I.A in O.S.No.39 of 2004 the file of learned District Judge, Cuddalore.

2. The appellants are third party petitioners before the first appellate court which is the Principal District Court, Cuddalore. The respondent filed a suit for partition in OS No.19 of 1992 before the Subordinate Judge, Cuddalore. The suit was filed initially against seven defendants who were the children of one Vaithi through his first wife Muthammal. The respondent claimed that he is the only son of the said Vaithi through a second wife Anjalai and therefore, he has become a sharer along with other children of Vaithi and claimed a share.

3. The original defendants resisted the suit by filing a written statement. They denied the claim of the respondent and denied the claim that he is the son through the second wife.

4. The trial court rejected the claim of the respondent. The respondent preferred an appeal in A.S No.39 of 2004 before the Principal District Court, Cuddalore. Unfortunately, the defendants in the original suits who were the respondents in that appeal did not appear and they were called absent and set exparte.

5. The Appellate Court proceeded to hear the appellant and delivered the judgment on 4.10.2005. The first appellate court found the plaintiff's claim was proved and granted preliminary decree for partition.

6. It is understood that the respondent initiated proceedings for final decree. In the meantime, the appellants who are the legal heirs of the 4th defendant in the suit named Thaiyalnayaki filed two applications before the Principal District Court, Cuddalore. An application under Order 22 Rule 10 read with sec.151 of Civil Procedure Code was filed to recognise the appellants as the legal heirs of the one of the deceased defendants and be permitted to prosecute an application filed under Order 41 Rule 21 of Civil Procedure Code. The other application was filed under Order 41 Rule 21 of CPC for rehearing of the appeal which was heard ex-parte. However, both the applications were not numbered and taken on file by the learned Principal District Judge, Cuddalore.

7. The application filed under order 22 Rule 10 of CPC was rejected stating that the “appeal in AS No.39 of 2004 has been disposed on 4.10.2005 on merits, after full discussion. This inter locutary application shall not be maintainable.” The other application filed under order 41 Rule 21 was dismissed stating that “Order 22 Rule 10 Petition rejected. Hence this petition also rejected”.

8. Aggrieved by these two orders, the present appeals have been preferred on the ground that the Court below has not properly considered the application for re-hearing and erred in passing a cryptic order without applying its mind.

9. Reiterating the said ground, Mr. R. Muralidharan, learned counsel for the appellants pointed out that under Order 41 Rule 21, the respondent who was set exparte can file an application for rehearing the appeal. The learned counsel further pointed out that the appellants are the legal heirs of the fourth defendant in the suit who died subsequently was not at all served with any notice in the appeal and therefore, the appellants have a right to be heard in the appeal.

10. On the contrary, Mr. M.A. Muthalagan, learned counsel for the respondent submitted that the judgment in the appeal was delivered as early as 2005 and, the appellants have preferred to file an application to set aside an exparte order only in the year 2011. The learned counsel pointed out that the first appellate court has rightly rejected the applications.

11. Heard and perused the materials available on record.

12. Order 41 Rule 21 reads as follows;

"ORDER XLI. APPEALS FROM ORIGINAL DECREES

21. Re-hearing on application of respondent against whom ex parte decree made

Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellant Court to