JUDGMENT

This matte is listed for admission and I have heard the learned counsel for the appellants.

2. This appeal is filed challenging the order dated

30.11.2016 passed on Mis.628/2011 on the file of the VIII Additional City Civil and Sessions Judge (CCH-15), Bengaluru, rejecting the petition filed under Order 9, Rule 13 of C.P.C. 3. The learned counsel for the appellants would vehemently contend that these appellants are arrayed as defendant Nos.6 and 7 before the Trial Court in O.S.No.2052/1993, wherein these appellants have been placed exparte and hence, they have filed an application before the Trial Court to set aside the exparte order by filing necessary application under Order 9, Rule 13 of C.P.C. and no order has been passed on the said application. In the meanwhile, an application is also filed under Order 6, Rule 17 of C.P.C. and the same was dismissed and thereafter, one more application for restoration of the said application was filed and no opportunity was given to these appellants and ultimately, the suit was decreed. It is also contended that the same was challenged before this Court by filing R.F.A.No.2558/2006 and the same was disposed of on 11.08.2011, wherein liberty was given to the appellants herein to file an application under Order 9, Rule 13 of C.P.C. and accordingly, the present application is filed before the Trial Court. The Trial Court dismissed the same on the ground that the defendants have admitted that the counsel on record in the original suit has not retired from the case and also specifically admitted that they have not at all insisted the Court to consider the application filed Order 9, Rule 7 of C.P.C. and these admissions found in the cross-examination of P.W.1 not helpful to the petitioners to allow the application filed under Order 9, Rule 13 of C.P.C. Hence, the Trial Court comes to the conclusion that the petitioners have not made out any ground to allow the petition filed under Order 9, Rule 13 of C.P.C. cannot be invoked and therefore, rejected the same. Hence, the present appeal is filed before this Court.

4. Learned counsel for the appellants would vehemently contend that this Court in R.F.A.No.2558/2006 though formed an opinion that no opportunity was given and also observed that no order has been passed on the application filed by the defendant Nos.6 and 7, who are the appellants herein under Order 9, Rule 7 of C.P.C. and made an observation that the Court below ought to have passed order on the application filed by the defendant Nos.6 and 7 within a reasonable period. However, the Court below erred in not passing any order on the application filed by the appellants praying for setting aside the exparte order and the same has created confusion and also further observed that the records of the Court below reveal that defendant Nos.6 and 7 were served with the application filed by the plaintiff for recalling the order of dismissal of application for amendment for non-prosecution. No notice was served on defendant Nos.6 and 7 with regard to I.A.No.12 filed by the plaintiff under Order 6, Rule 7 of C.P.C. i.e., second application for amendment of plaint. This Court also observed that these facts clearly go to show that defendant Nos.6 and 7 were not heard in the matter as required in law and formed an opinion that grounds are made out to set aside the judgment and decree but, comes to the conclusion that the Court should not enter into the merits in view of the fact that the appellants herein will have to approach the Court below by filing an application under Order 9, Rule 13 of C.P.C. praying for setting aside the exparte decree and liberty was given to file the same. However, in the operative portion, it is observed that the Court below shall decide the said application keeping in mind the observations made above, if such an application is made by the appellants within six weeks from that day and the Court below shall not raise the question of delay.

5. The Trial Court having con