- 1 - HC-KAR NC: 2025:KHC:44923 CRP No. 1 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CIVIL REVISION PETITION NO. 1 OF 2023 (M-) BETWEEN: MR. LANCY D’SA, S/O LATE ALBERT D’SA, AGED ABOUT 53 YEARS, R/AT D.NO 2-39, NEAR AGRAR CHURCH, PONNANGILA, BANTWAL KASABA VILLAGE, BANTWAL TALUK, D. K. DIST. – 574 219. REPRESENTED BY GPA HOLDER MRS. SUNITHA LINNETT D’SA, W/O LANCY D'SA, AGED ABOUT 45 YEARS, R/AT D.NO 2-39, NEAR AGRAR CHURCH, PONNANGILA, BANTWAL KASABA VILLAGE, BANTWAL TALUK, D. K. DIST. – 574 219. …PETITIONER (BY SRI. RAVISHANKAR SHASTRY G, ADVOCATE) AND: 1. MRS. PHILOMENA D’ SILVA, W/O MR. JOSEPH D’SILVA, D/O LATE ALBERT D’SA, AGED ABOUT 67 YEARS, R/AT 14-KENDRESHAM-COURT, ROSE DALE, MARYLAND, Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:44923 CRP No. 1 of 2023 U.S.A. – 21237. 2. MRS. RESHMA, D/O LATE BENEDICTA MENDONCA AND LATE ALBERT MENDONCA, AGED ABOUT 41 YEARS, R/AT NEAR AGRAR CHURCH, AGAR POST, BANTWAL TALUK, D.K. DISTRICT – 574 219. 3. MR. ROHAN MENDONCA, S/O LATE BENEDICTA MENDONCA AND LATE ALBERT MENDONCA, AGED ABOUT 41 YEARS, R/AT NEAR AGRAR CHURCH, AGAR POST, BANTWAL TALUK, D.K.DISTRICT – 574 219. 4. MR. P.H.PEREIRA, H/O LATE THERESA PEREIRA, AGED ABOUT 68 YEARS, 5. MR. LLOYD PEREIRA, S/O LATE THERESA PEREIRA AND P.H.PEREIRA, AGED ABOUT 41 YEARS, 6. MRS. LAURA SHEREL PEREIRA, D/O LATE THERESA PEREIRA AND MR. P.H.PEREIRA, AGED ABOUT 39 YEARS, 7. MR. LESTER PEREIRA, S/O LATE THERESA PEREIRA AND MR. P.H.PEREIRA, - 3 - HC-KAR NC: 2025:KHC:44923 CRP No. 1 of 2023 AGED ABOUT 33 YEARS, RESPONDENTS NO.4 TO 7 ARE R/AT MOODU PERER CHURCH, NEAR PERAR CHURCH, MANGALURU, D.K.DISTRICT – 574 166. 8. MR. PAUL M D’SA, S/O LATE ALBERT D’SA, ADULT, R/AT POST BOX - 13, M.T.D. PUBLIC SECURITY, UM-A1, HASSAM, BAHRAIN. 9. SISTER SNEHA A.C., D/O LATE ALBERT D’SA, AGED ABOUT 65 YEARS, R/AT ST. AGNES CONVENT, BENDOREWELL, MANGALURU, D.K.DISTRICT – 575 007. 10. MRS. RENNY RITA SALDANHA, W/O MR. ARUN SALDANHA, D/O LATE ALBERT D’SA, AGED ABOUT 47 YEARS, R/AT P.O.BOX - 51080, G-17, LOB 1, PHASE 1, HAMRIYAH FREE ZONE, SHARJAH, UAE. …RESPONDENTS (BY SRI. K.RAVISHANKAR, ADVOCATE FOR R1; R4 IS SERVED AND UNREPRESENTED; NOTICE TO R2, R3 AND R5 TO R9 IS DISPENSED WITH VIDE ORDER DATED 03/09/2024; NOTICE TO R10 IS HELD SUFFICIENT VIDE ORDER DATED 17/09/2024) - 4 - HC-KAR NC: 2025:KHC:44923 CRP No. 1 of 2023 THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC PRAYING TO SET ASIDE THE ORDER DATED 18.11.2022 PASSED IN MISC.CASE No.05/2020 PASSED BY THE COURT OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU, BY ALLOWING THIS REVISION PETITION IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER Though this matter is listed for orders on I.A.No.1/2024, the matter is taken up for final disposal by consent of the parties. 2. The Revision Petitioner is the plaintiff in O.S.No.3/2014 challenging setting aside of the ex parte order in Miscellaneous Case No.5/2020. 3. Facts in the nutshell which are utmost necessary for disposal of the present petition are as under: (a) Plaintiff filed a case for issue of probate in respect of the WILL executed by Albert D'Sa. Respondent No.1 in the - 5 - HC-KAR NC: 2025:KHC:44923 CRP No. 1 of 2023 present petition who is the defendant No.3 in the probate proceedings, objected for grant of probate and therefore, the probate proceedings were converted into suit and re-numbered as Original Suit No.3/2014. (b) Defendant No.3 who is respondent No.1 in this petition did not choose to contest the suit and as such, after following the necessary procedure, suit was decreed. (c) Being aggrieved by the same, defendant No.3 in O.S.No.3/2014, filed a Miscellaneous Case No.5/2020 contending that there was no notice in the original suit and sought setting aside the ex parte decree. (d) Learned Judge after considering the rival contention of the parties, allowed the Miscellaneous Petition filed under Order IX Rule 13 of the Code of Civil Procedure and set aside the ex parte decree and directed the suit O.S.No.3/2014 to be tried afresh, in accordance with law. Validating of the said order is called in question in this Civil Revision Petition. 4. Sri.Ravishankar Shastry, learned counsel for the Revision Petitioner reiterating the grounds urged in the Civil - 6 - HC-KAR NC: 2025:KHC:44923 CRP No. 1 of 2023 Revision Petition vehemently contented that respondent No.1 who was defendant No.3 in the suit was duly served by way of sub-service by publishing the same in the newspaper and defendant No.3 did not chose to appear before the Court and contended that she was residing in United States of America and therefore, the learned trial Judge erred in setting aside the ex parte decree especially after the trial Court in O.S.No.3/2014 has satisfied itself about the sufficiency of the service and sought for allowing the Civil Revision Petition. 5. Per contra, learned counsel for the respondent No.1-Sri.K.Ravishankar supports the impugned order by contending that the decree operates in rem and such proceedings if decided ex parte, would result in grave miscarriage of justice and therefore, sought for dismissal of the Civil Revision Petition. 6. Having heard both sides, this Court perused the material on record meticulously. - 7 - HC-KAR NC: 2025:KHC:44923 CRP No. 1 of 2023 7. In the first place, when once the probate case is converted into suit wherein parties were duly represented, there was no necessity for issue of the summons in the converted petition in O.S.No.3/2014. 8. Nevertheless, by way of abundant caution, the trial Court issued notices to the defendants. The defendant No.3 was not served and after exhausting all the possible methods of serving the defendant No.3, plaintiff had to resort to take notice to defendant No.3 through sub-service by publishing it in the newspaper. 9. Learned trial Judge after verifying the publication matter, got satisfied as to the sufficiency of service and then proceeded to adjudicate the suit. 10. After so adjudicating the matter, suit came to be decreed. However, defendant No.3 filed an application under Order IX Rule 13 of CPC which was registered in Miscellaneous Case No.5/2020 by contending that on the day of publication of the notice in the newspaper, she was already residing in United - 8 - HC-KAR NC: 2025:KHC:44923 CRP No. 1 of 2023 States of America and therefore, the sufficiency of the service of summons recorded by the learned trial Judge is incorrect, which has been rightly appreciated by the learned trial Judge. 11. It is to be noted that irrespective of the defect in the procedure that has been adopted by the trial Court and also the factual aspect that has been pleaded by defendant No.3 before the trial Court in Miscellaneous Case No.5/2020, since the grant of probate acts in rem, a party to proceedings cannot be permitted to take advantage of ex parte decree. 12. However, it is noticed that plaintiff is unnecessarily penalized by accepting the version of defendant No.3 and it is for the defendant No.3 to intimate the Court that she is residing in United States of America, especially when she was properly represented before the probate proceedings. 13. Learned trial Judge while allowing the application under Order IX Rule 13 of CPC, without imposing any cost, simply set aside the ex parte decree. Same has resulted in impairing the rights of the plaintiff and postponement of the - 9 - HC-KAR NC: 2025:KHC:44923 CRP No. 1 of 2023 fruits of the decree. Therefore, in the considered opinion of this Court, if a sum of ₹ 50,000/- is ordered to be paid as cost to the plaintiff and the trial in O.S.No.3/2014 is directed to be expedited, ends of justice would be met in the peculiar facts and circumstances of the case. 14. Accordingly, the following: ORDER [i] Civil Revision petition stands disposed of. [ii] Order of the trial Court in Miscellaneous No.5/2020 is modified by directing defendant No.3-respondent No.1 Smt. Philomena D’ Silva to pay cost of ₹50,000/- to the plaintiff- Revision Petitioner Mr. Lancy D’Sa. [iii] Parties shall appear positively on 01.12.2025 before the trial Court and proceed with the case in accordance with law. [iv] Payment of cost of ₹50,000/- on or before 01.12.2025 is a condition precedent for defendant No.3 to participate further in the suit. - 10 - HC-KAR NC: 2025:KHC:44923 CRP No. 1 of 2023 [v] In view of the fact that the suit which is converted from the probate proceedings is of the year 2014, learned trial Judge shall expedite the same and dispose of as early as possible but not later than 30.06.2026. [vi] Parties may also utilize the facility of video conferencing and effectively participate in the proceedings. Ordered accordingly. Sd/- (V SRISHANANDA) JUDGE CBC List No.: 1 Sl No.: 22 CT:SS