1. Challenging the order passed in an unnumbered application in I.A.S.R. No. 33080 of 2012 on the file of VI Additional Judge, City Civil Court, Chennai, the defendants have filed the above Civil Revision Petition.

2. Originally, the respondent/plaintiff filed a suit in C.S.No.248/2004 before this Court for recovery of possession, for mesne profits and for recovery of Rs.26,957/- towards maintenance and telephone charges. The defendants filed their written statement and were contesting the suit. Subsequently, when the pecuniary jurisdiction of the City Civil Court was increased, the suit in C.S.No.248/2004, pending on the file of this Court, was transferred to the file of VI Additional Judge, City Civil Court, Chennai and numbered as O.S. No. 13825/2010. Since the defendants failed to appear before the VI Additional Judge, City Civil Court, Chennai, the trial Court, by its Judgment and Decree dated 31.10.2011, on merits, decreed the suit for recovery of possession and for recovery of a sum of Rs.26,957/-. Regarding the prayer for mesne profits, the trial Court observed that the same can be decided in a separate enquiry, under Order 20 Rule 12 of the Civil Procedure Code.

3. Though the judgment was pronounced by the trial Court, on merits, in Paragraph-7 of the judgment, it has been stated that the arguments on the side of the defendants was not heard. Based on the pleadings, documents and evidence, the trial Court had passed the decree. Thereafter, the defendants filed an unnumbered application in I.A.S.R. No. 33080/2012 to condone the delay in filing the application to set aside the ex-parte decree dated 31.10.2011. In the affidavit, filed in support of the petition, the defendants have stated that after the transfer of the suit from the file of this Court to the file of City Civil Court, no Notice was sent to the defendants by the Transferee Court and therefore, they could not appear before the City Civil Court and contested the matter, inspite of the fact that they filed their written statement and also let in evidence before the High Court of Madras.

4. The trial Court returned the application, filed by the defendants, as not maintainable for the reason that the judgment was pronounced on merits and therefore, the same cannot be set aside. Challenging this order, the defendants have filed the above Civil Revision Petition.

5. The learned counsel appearing for the petitioners submitted that the application, filed by the defendants, to condone the delay in filing the application to set aside the ex-parte decree, is maintainable for the reason that the judgment and decree was passed without hearing the defendants and the same should be construed only as an ex-parte decree. The learned counsel also submitted that though the suit was transferred from the file of this Court to the file of City Civil Court, since the defendants were not given Notice, they could not appear before the trial Court and contest the suit. Further, the learned counsel submitted that the defendants are entitled to Notice from the transferee Court. In support of her contention, the learned counsel relied upon the following judgments:

(i) 1979 3 SCC 578 (N. Jayaram Reddy and Another vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool)

But even if it were assumed that the government appeal deserved to be dismissed as a whole because of its abatement against the deceased respondent, there is no justification for Mr. Sen's further argument that the High Court's decree dated February 4, 1969, was a nullity merely because it was passed against a dead person, namely, Y. Prabhakar Reddy. It has to be appreciated that a decree against a dead person is not necessarily a nullity for all purposes. It will be sufficient to say that such a decree has been held to be a nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of being heard in respect of it, and the legal rep