- 1 - HC-KAR NC: 2025:KHC:33171 MFA No. 8366 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.8366 OF 2018 (CPC) BETWEEN: SMT. VIMALA SINCE DEAD BY LRs 1. SRI. K. S. JAGANATH, AGED ABOUT 62 YEARS, S/O LATE K.N. SRIKANTAIAH, RESIDING AT NO.1802-B, “SRIKANTHA KRUPA”, 13TH CROSS, H.S.R. SECTOR I, BENGALURU – 560 102. 2. SRI. K. S. SURESH, AGED 60 YEARS, S/O LATE SRIKANTAIAH, RESIDING AT NO.2720, 1ST FLOOR, 12TH MAIN ROAD, 4TH BLOCK, JAYANAGAR, BENGALURU – 560 011. 3. SRI. K. S. SADASHIVA PRASAD, AGED 55 YEARS, S/O LATE K. N. SRIKANTAIAH, RESIDING AT NO.220/A, 7TH MAIN ROAD, JAYANAGAR 1ST BLOCK, BYRASANDRA, BENGALURU – 560 011. 4. SMT. LATHA KUMAR AGED 50 YEARS, W/O LATE KUMAR, 5. SMT. DEEPTHI, Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33171 MFA No. 8366 of 2018 AGED 23 YEARS, D/O LATE KUMAR, APPELLANTS 4 AND 5 ARE RESIDING NO.24/D, PAWANA, 70TH MAIN, MUNESHWARA BLOCK, GIRINAGARA, BENGALURU – 560 026. AMENDED AS PER COURT ORDER DATED 21.01.2020 …APPELLANTS (BY SRI. B. V. BADRINATH, ADVOCATE) AND: 1. SMT. JAYAMMA SINCE DEAD BY HER LRs SRI. SOMASHEKAR, AGED ABOUT 50 YEARS, S/O LATE B. R. SHIVARAM, RESIDING AT NO.471, 3RD CROSS, BANASHANKARI, SREENAGAR, BENGALURU – 560 050 AMENDED CARRIED OUT AS PER ORDER DATED 02.12.2024 …RESPONDENT (BY SRI. V. B. SHIVAKUMAR, ADVOCATE) THIS MFA IS FILED U/O.43 RULE 1(d) OF THE CPC, AGAINST THE ORDER DATED 14.08.2018 PASSED ON IA NO.1 IN MIS.NO.630/2016 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH NO.28), REJECTING IA NO.1 U/S.5 OF LIMITATION ACT, CONSEQUENTLY DISMISSING MISCELLANEOUS PETITION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:33171 MFA No. 8366 of 2018 CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appeal is filed by the defendant in O.S.No.302/2013 and the petitioner in Misc. No.630/2016 questioning the order dated 14.08.2018 passed by the Court of XIV Addl. City Civil Judge, Bangalore, on I.A.No.1 filed under Section 5 of the Limitation Act, thereby, the trial court dismissed the Misc. No.630/2016 confirming the exparte judgment and decree passed in the suit. 2. The respondent herein has filed suit for a specific performance of contract. The trial court on the pretext that the suit summons had been served on the defendant but the defendant has not made any representation and contested the suit, proceeded to consider the suit on merits and passed the exparte judgment and decree by granting the relief of specific performance of contract. Later on, the plaintiff has filed Execution Petition No.242/2014 and Execution Petition - 4 - HC-KAR NC: 2025:KHC:33171 MFA No. 8366 of 2018 No.2747/2015. Later on, the defendant came to know that such and such exparte judgment and decree is passed during the execution proceedings. Therefore, filed the petition under Order IX Rule 13 of CPC and the trial court has dismissed the miscellaneous petition on the ground of delay. Therefore, the defendant in the suit is before this Court in this appeal. 3. The learned counsel for the defendant/appellant submitted that the order sheet clearly revealed that suit summons have not been served on the defendant, but erroneously it is shown that suit summons have been served on the defendant, therefore the defendant had no occasion/opportunity to know the suit proceedings against the defendant. Therefore, prays to allow the appeal and set aside the order passed in the miscellaneous petition and exparte judgment and decree. He places reliance on the order sheet maintained by the trial court in the suit and submitted that the endorsement in the order sheet that the suit summons has been served is not found. - 5 - HC-KAR NC: 2025:KHC:33171 MFA No. 8366 of 2018 4. On the other hand, the learned counsel for the respondent/plaintiff submitted that in the miscellaneous petition, the defendant herself has admitted that she has received the suit summons. Therefore, when this being the admission the defendant knew the suit proceedings was pending before the trial court, but did not appear. Hence, there is no need to make interference in the impugned order and as such, prays for dismissal of the appeal. 5. Upon considering the certified copy of the order sheet produced by the counsel for the appellant/defendant in this appeal while arguing the case, this Court has carefully perused whether there is endorsement that suit summons having been served on the defendant, but upon perusal of the order sheet there is no endorsement that suit summons has been served on the defendant, but it is erroneously shown that the summons have been served on the defendant. Further on considering the various - 6 - HC-KAR NC: 2025:KHC:33171 MFA No. 8366 of 2018 dates of posting of the suit at initial stage of service to the defendant, there is no endorsement that summons has been served on the defendant. Therefore, it is evident that the defendant has been wrongly placed exparte. It is stated that during the execution proceedings the defendant came to know about the exparte judgment and decree was passed and as such filed a miscellaneous petition, by which time there was delay of 1279 days in preferring the miscellaneous petition. For the reasons above stated, when the defendant has not received summons under the circumstances as above stated, till the execution is filed and executing the decree, the defendant did not know the exparte judgment and decree passed by the trial court. Therefore, such delay is quite naturally has been occurred and that should not be made as a ground to dismiss the miscellaneous petition. Therefore, the exparte judgment and decree passed is one sided. Hence, an opportunity is to be given to the defendant to contest the suit. Therefore, the trial court erred in dismissing the - 7 - HC-KAR NC: 2025:KHC:33171 MFA No. 8366 of 2018 miscellaneous petition. Hence, the order passed in miscellaneous petition and the exparte judgment and decree are liable to be set aside and the matter is required to be remanded to the trial court for fresh consideration. 6. During the course of arguments the learned counsel for the appellant/defendant submitted that in execution proceedings the executing court has issued warrant of regarding possession only in respect of first and second floor, but the defendant who was residing in the ground floor has also been vacated on the guise of the warrant issued. Therefore, submitted that the defendant was wrongly dispossessed/evicted from the ground floor. Whether there was warrant only in respect of first and second floors or including the ground floor as well whether there is any report of handing over possession of all three floors or only first and second floor and what is the order passed by the executing court is required to be considered by the trial court. Therefore, the application filed by the appellant/defendant under Section 144 of CPC can be - 8 - HC-KAR NC: 2025:KHC:33171 MFA No. 8366 of 2018 considered during the pendency of the suit. Liberty is reserved to the respondent/plaintiff to file objections to the application and trial court is directed to consider the said application in accordance with law and pass appropriate orders as per law. 7. Hence, I proceed to pass the following: ORDER (i) The appeal is allowed. (ii) The impugned order dated 14.08.2018 passed by the Court of XIV Addl. City Civil Judge, Bangalore, on I.A.No.1 filed under Section 5 of the Limitation Act in Misc. No.630/2016 and the exparte judgment and decree dated 11.06.2013 passed by the XIV Additional City Civil and Sessions Judge, Bangalore, in O.S.No.302/2013, are set aside. (iii) The defendant is permitted to file the written statement. - 9 - HC-KAR NC: 2025:KHC:33171 MFA No. 8366 of 2018 (iv) Both the parties are directed to appear before the trial court on 10.09.2025 without further notice from this Court. (v) Liberty is reserved to both parties to lead the evidence. (vi) The trial court is directed to dispose of the suit within a period of one year from 10.09.2025 in accordance with law. (vii) All contentions of both parties are kept open. SD/- (HANCHATE SANJEEVKUMAR) JUDGE DR List No.: 1 Sl No.: 30