Potharaju Venkata Anjani Devi vs Atkuri Sseetha Rama Kumar
2023 Latest Caselaw 5652 AP

Andhra Pradesh High Court - Amravati

Potharaju Venkata Anjani Devi vs Atkuri Sseetha Rama Kumar on 28 November, 2023

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
            HON'BLE SRI JUSTICE NYAPATHY VIJAY

       CIVIL MISCELLANEOUS APPEAL NO.329 of 2011


JUDGMENT:

-

The present Civil Miscellaneous Appeal is filed against

the interlocutory order dated 09.02.2011 in I.A.No.210 of

2006 in A.S.No.151 of 2005 on the file of X Additional District

Judge, Krishna District at Machilipatnam. Respondent Nos.2

to 4 along with one A.Veera Venkata Subba Rao had filed

O.S.No.335 of 2002 on the file of Principal Junior Civil Judge,

Machilipatnam, against the petitioner herein and respondent

Nos.5 & 6 for partition and separate possession of suit

schedule property. During pendency of the suit, said A.Veera

Venkata Subba Rao, expired and his son was brought on

record as his legal representative. The Trial Court by

judgment and decree dated 01.08.2005 dismissed the suit;

against which an appeal A.S.No.151 of 2005 was filed on the

file of Principal District Judge, Krishna District at

Machilipatnam. The petitioner was set ex parte on

01.12.2005 i.e., on the date on which the appeal suit was

posted for the first time for the appearance of the petitioner.

The petitioner filed an application I.A.No.210 of 2006 seeking

to set-aside the ex parte order dated 01.12.2005 passed in

the appeal. The said I.A.No.210 of 2006 was dismissed by

order dated 09.02.2011. Hence, the present Civil

Miscellaneous Appeal is filed.

2. The lower Appellate Court ought to have seen that the

petitioner has contested the suit and the suit was dismissed

on merits. The question of setting the individual ex parte on

the very first date of appearance is unsustainable and this

aspect of the issue was not addressed by the lower Appellate

Court. The lower Appellate Court dismissed the application

only on the ground that there is a delay in seeking to set

aside the ex parte order, but had not explained as to why the

petitioner was set ex parte on the very first date after the

notice was served.

3. This Court, on inquiry, was informed that the appeal is

still pending. Therefore, the order of the lower Appellate Court

in I.A.No.210 of 2006 in A.S.No.151 of 2015 dated

09.02.2011 is set-aside and the Civil Miscellaneous Appeal is

allowed. There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any,

shall stand closed.

_____________________________ JUSTICE NYAPATHY VIJAY

28.11.2023 RKS