ORDER :

Defendant Nos. 2 and 3 in O.S.No.805 of 2006 on the file of the Court of VII Additional Senior Civil Judge, Visakhapatnam filed the present Civil Miscellaneous Appeal under Order 43 Rule 1(d) of C.P.C.

2. The respondents/ plaintiffs filed suit O.S.No.805 of 2006 on the file of VII Additional Senior Civil Judge, Visakhapatnam for declaration of title and for recovery of possession of the plaint schedule property after evicting the defendants from the plaint schedule property and for costs etc.,. The plaint schedule property is vacant site admeasuring to an extent of 102.22 Sq.yds in Block No.47, covered by Sy.No.675 situated at Yellammathota, Allipuram Ward, Visakhapatnam district.

3. When the suit is coming up for trial i.e., for cross examination of

P.W.1, appellants failed to cross-examine the P.W.1 and therefore the Court below imposed costs on them. As a result, the Court below passed an ex - partee decree on 08.09.2017.

4.

I.A.No.33 of 2018 was filed by the petitioners herein under Order IX Rule 13 r/w 151 C.P.C before the Court below to set aside the ex - parte decree dated 08.09.2017.

5. In the affidavit filed in support of the said application, it was contended interalia that subsequent to the death of the 1 st appellant, 2 nd appellant is looking after the affairs of the suit. Due to ill health, he could not attend the court on 08.09.2017 and the learned counsel also did not attend the court to represent the matter. Since there is no representation, the Court below decreed the suit. Later, he went to the office of the counsel on 11.09.2017 to know the status of their case and on that day his counsel returned the suit bundle with no objection Vakalat by stating that the suit was decreed in favour of the respondents herein. Thereafter, the Court below posted the matter to 22.09.2017.

6. Counter was filed by the respondents opposing the said application and in the counter affidavit it was contended that the defendants have been dragging on the suit. It is further contended that defendants have not even furnished address particulars of the legal heirs of the deceased 1 st defendant therein despite notice and even the service of the notices were also evaded for a considerable period and eventually, prayed the Court to dismiss the petition.

7. Trial Court, by order dated 09.11.2018, dismissed the petition filed by the appellants herein. Aggrieved by the same, the present appeal is filed.

8. Heard.

9. Sri A.S.C.Bose, learned counsel for the appellants submits that inspite of service of notice, there is no representation on behalf of the respondents. He further contended that the respondents filed suit for declaration of title and for recovery of possession of the plaint schedule property. He further submits that after the death of the 1 st appellant, 2 nd appellant herein is looking after the case and due to his ill-health, he could not appear before the Court and also submitted that since valuable rights of the parties are involved, an opportunity be given to the appellants to defend their case.

10. Admittedly, the suit is filed for declaration and for recovery of possession in respect of immovable property and when the suit came up for cross examination of P.W.1, on costs of Rs.200/-, since there is no representation on that day, the Court below decreed the suit. The Court below set the defendants ex-parte and decreed the suit in favour of the plaintiffs on the same day. Immediately, an application is filed under order IX Rule 13 r/w section 151 of C.P.C. to set aside the ex-parte decree. In the order of the court below, it has been mentioned that no application was filed for setting aside the ex-parte decree. As seen from the record, since the appellants are directed to appear before the court on

08.09.2017, they were set ex-parte and on the same day, suit was also decreed. The appl