IN THE HIGH COURT OF BOMBAY AT GOA

APPEAL FROM ORDER NO.24 OF 2003

Shri Vincent Palha alias

Vincente Palke (since deceased)

represented by his legal heirs

a) Smt. Damian Palha wife of

deceased Vincente Palha;

b) Master Melwyn Palha, son of

deceased Vincente Palha,

c) Master Hubert Palha, son of

deceased Vincent Palha,

d) Ms. Helen Palha, Daughter of

deceased Vincente Palha,

e) Ms Maria Goretti Palha,

Daughter of deceased Vincente Palha,

All resident of Agasaim,

Presently residing at Sonarbhat,

Saligao, Bardez, Goa.

..... Applicants.

V/s.

Mr. Jeffery Fernandes,

S/o Late Manuel Francisco

Fernandes alias Manuel Francisco

Antonio Fernandes, retired,

Sonarbhat, Saligao, Bardez, Goa.

.... Respondents.

Ms. Susan Linhares, Advocate under the Legal Aid

Scheme.

Mr. N.N. Sardessai, Advocate for the respondent.

CORAM : A.M. KHANWILKAR, J.

DATE : NOVEMBER 28, 2003.

ORAL JUDGMENT:

By this appeal under Order 43 of the Code of

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Civil Procedure, the appellants have challenged the

Judgment and Order dated February 17, 2003 passed on

Civil Misc. Application No. 149/2003 which, in turn,

rejected the prayer for setting aside the ex-parte

Judgment and Decree passed by the Addl. District

Judge, at Mapusa in Regular Civil Appeal No.46/2001

dated May 27, 2002.

2. Briefly stated, the respondent filed a

suit being Special Civil Suit no.46/94 before the Court

of Civil Judge, Sr. Division, at Mapusa for eviction,

mandatory and permanent injunction and recovery of

mesne profits, against the appellants. The said suit,

however, came to be dismissed by the Judgment and

Decree dated June 13, 2000. Against that decision, the

respondent carried the matter in appeal being Regular

Civil Appeal No.46/2001 before the Addl. District

Judge, Mapusa. It is the appellants’ case that the

appellants were not served with summons of hearing of

the said appeal at all. Nevertheless, the appeal came

to be decided ex-parte against the appellants by

Judgment and Decree dated May 27, 2002. By this

decision, the appellate Court was pleased to decree the

suit in favour of the respondent. It is the case of

the appellants that as soon as the appellants became

aware about the said ex-parte Judgment and Decree

passed by the Addl. District Judge, Mapusa, they

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immediately filed an application for setting aside the

same, sometime in August, 2002, being Civil Misc.

Application No.149/2002 under Order 41, Rule 21 of

C.P.C. That Civil Application was, however, dismissed

on February 17, 2003 being devoid of merits. Against

the said decision, the appellants have preferred the

present appeal from order.

3. On the other hand, the case of the

respondent is that the summons regarding hearing of the

appeal before the Addl. District Judge, Mapusa was

sent on the known address of the appellants and the

same was served on appellant No.(e) Ms Maria Goretti

Palha and that position is fortified from the materials

which were already on record before the Court below.

In response, the appellants submit that assuming the

summons came to be served on appellant No.(e), the

service of that summons on the appella