and

decree

dated

01.10.2010

in

O.S.No.3774/2008.

:: 2 ::

This MFA coming on for final hearing this day,

the Court delivered the following:

JUDGMENT

This appeal is by the respondent in Misc. No.

290/2011 on the file of V Additional City Civil

Judge (CCH-13), Bengaluru City. The events

giving rise to this appeal are as follows : -

2.

The

respondent

herein

filed

a

suit

O.S.3774/2008

before

the

City

Civil

Judge,

Bengaluru, against the appellant for partition and

separate possession of the property bearing No.

334, site No.46, situated at 3^rd Cross, Parvathi

Nagar, Laggere Main Road, Yeshwanthapura Hobli,

Bengaluru-560 058. In the said suit, the appellant

was the third defendant, the first and second

defendants being the mother and sister of the

appellant. The respondent is also another sister of

the appellant. Since nobody contested the suit, it

was decreed ex-parte on 1.3.2010. The appellant

thereafter filed a petition under Order IX Rule 13

:: 3 ::

CPC seeking to set aside the ex-parte judgment.

Since the trial court dismissed the said petition by

its order dated 29.6.2013, the appellant has

approached this court.

3. Heard Sri Ramachandra G Bhat, learned

counsel for the appellant. The respondent has not

entered appearance in spite of service of notice on

her.

4. It is argued by Sri Ramachandra G Bhat,

learned counsel for the appellant, that actually the

appellant did not receive the suit summons. In

the suit, the appellant’s address is wrongly shown

as No. 334, site No.46, situated at 3^rd Cross,

Parvathi

Nagar,

Laggere

Main

Road,

Yeshwanthapura

Hobli,

Bengaluru-560

058.

Actually the suit summons was not served and this

becomes clear from the endorsement made by the

process

server

as

‘door

locked’.

Then

the

summons appears to have been sent to the

:: 4 ::

appellant by registered post acknowledgment due

to the same address. It was also not served on

the appellant. The postal endorsement shows that

intimation was left at the address by the postman

and since it was not claimed within seven days,

the postal cover was returned to the sender. On

this basis, the trial court held that there was

deemed service on the appellant. This resulted in

ex-parte judgment being passed. He further

submits that defendants 1 and 2 have colluded

with plaintiff/respondent and therefore they too

did not inform the appellant about the suit being

filed. The appellant came to know about the ex-

parte decree on 2.1.2011 when the respondent

came to his house with the copy of the decree and

demanded

for

partition.

Immediately

the

appellant made enquiry and obtained certified

copy of the judgment and decree and then applied

for setting aside the said ex-parte decree. It is

his further contention that the suit property was

:: 5 ::

the self acquisition of his father who had made a

gift

of

it

in favour

of

the

appellant.

The

respondent was not entitled to claim partition in

view of the gift deed. The respondent knew of the

gift, in spite of that, she filed suit for partition

suppressing the gift deed. If an opportunity is

given to the appellant, he will establish his case

based on the gift deed and hence this appeal

deserves to be allowed. Since there was delay in

filing the petition under Order IX Rule 9 CPC, the

appellant made an application under section 5 of

the Limitation Act.

5. The records in O.S.3774/2008 and Misc.

No.

290/2011

are

secured.

Perusal

of

the

impugned

order

shows

that

the

court

below

decided the application under section 5 of the

Limitation Act and also the petition under Order IX

Rule 13 CPC together. It has found that the delay

in filing the application was not suitably explained

:: 6 ::

and therefore the application under section 5 of

the Limitation Act was dismissed. Discussing the

merits of the Miscellaneous Petition, the court

below came to the conclusion that the petition did

not deserve to be allowed and hence on merits

also the petition was dismissed.

6. Since the main contention of the appellant

is th