Karnataka High Court
Anthony. J vs Anthony Emanuel George on 17 November, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:47044
CRP No. 539 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
CIVIL REVISION PETITION NO. 539 OF 2018 (M)
BETWEEN:
1. ANTHONY J.
S/O. LATE JOSEPH,
AGED ABOUT 72 YEARS,
R/AT NO.4/20,
1ST CROSS, H.M. ROAD,
ST. THOMAS TOWN POST,
LINGARAJAPURAM,
BANGALORE - 560 084.
SINCE DECEASED REPRESENTED BY HIS LRS
1A. MRS. FATHIMA MARY
W/O. LATE ANTHON J
AGED ABOUT 71 YEARS
Digitally
signed by R
MANJUNATHA 1B. ANITA ANTHONY
Location: D/O. LATE ANTHONY J
HIGH COURT
OF AGED ABOUT 51 YEARS
KARNATAKA
1C. ANGELA ANTHONY
D/O. LATE ANTHONY J
AGED ABOUT 44 YEARS
1D. SUZANNE KAVITHA
D/O. LATE ANTHONY J
AGED ABOUT 41 YEARS
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NC: 2025:KHC:47044
CRP No. 539 of 2018
HC-KAR
ALL ARE R/AT NO.103,
SUNNYSIDE APARTMENT
NO.594, 1ST MAIN ROAD
ST. THOMAS TOWN
KARIYANAPALYA
BANGALORE - 560 084
...PETITIONERS
(BY SMT. KAMALA KUMARI, ADVOCATE)
AND:
1. ANTHONY EMANUEL GEORGE
S/O. ALEXANDAR MURRAY (LATE)
AGED ABOUT 43 YEARS,
2. ALOYSIUS SURESH
S/O. ALEXANDAR MURRAY (LATE),
AGED ABOUT 41 YEARS,
BOTH ARE R/AT NO.4,
BEHIND LOKESH CHITRA-MANDIRA,
JAGADEESH COMPOUND,
KANAKADASA LAYOUT,
LINGARAJAPURAM,
BANGALORE - 560 084.
...RESPONDENTS
(BY SRI. MADAN GOPAL M., ADVOCATE FOR R1 AND R2)
THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST
THE ORDER DATED 19.09.2016 PASSED IN MISC.NO.142/2016
ON THE FILE OF THE X ADDL.JUDGE, COURT OF SMALL
CAUSES (SCCH-16) BANGALORE DISMISSING THE PETITION
FILED UNDER ORDER IX RULE 13 R/W. SEC. 151 OF CPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRP No. 539 of 2018
HC-KAR
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL ORDER
1. Heard Smt. Kamala Kumari, learned counsel for the petitioner. None appears for the respondent.
2. Defendant in S.C. No.721/2013 having suffered the ex parte decree of ejectment, filed a petition under Order IX Rule 13 of the Code of Civil Procedure in M.C. No.142/2016 seeking setting aside the ex parte decree.
3. Landlord contested the said petition and evidence was recorded by the parties. During the course of evidence, certified copy of the original proceedings were marked on behalf of the petitioner. Exhibit P13 is the certified copy of the RPAD cover, wherein there is a specific mention by the postal authority that the 'notice has been refused'.
4. So also, in Exhibit P12, the Bailiff of the Court who had visited the petitioner on 15.03.2014 and 20.03.2014 along with the petitioner, made a specific -4- NC: 2025:KHC:47044 CRP No. 539 of 2018 HC-KAR endorsement that the 'petitioner herein refused to receive the notice'.
5. Taking note of the refusal by the Bailiff as well as the RPAD cover, the petitioner was placed ex parte in S.C. No.721/2013 and ex parte decree Of ejectment came to be passed.
6. Learned Trial Judge while considering the request of the petitioner seeking setting aside the ex parte decree, has considered the probative value of the material placed on record in paragraph Nos.14 to 18 as under and rejected the petition seeking setting aside the ex parte decree:
14. The certified copy of summons in SC.721/13 and its report/shara dated 1-8-2013 reveals that on 30-7-13, ameen had been to the address of the petitioner and he came to know that the petitioner was not feeling well and he was not in a position to come out. Therefore, ameen asked the brother of the petitioner and his wife to receive the suit summons, they also refused to receive the summons. Therefore, he affixed the suit summons to the door of the petitioner and obtained signature and reported the same to the court. The notice issued through RPAD -5- NC: 2025:KHC:47044 CRP No. 539 of 2018 HC-KAR was returned with an endorsement "party refused" and returned to sender as could be seen from the shara dated 23-9-2013. The said RPAD was addressed to the petitioner at No.4/20, 1st Cross, Lingarajapuram, Bangalore-84.
15. The report of the court bailiff in Ex.443/14 reveals that on 3-5-2014, possession of the suit schedule premises was handed over to the respondents in the said execution petition and also notice issued to the petitioner was returned with an endorsement "refused".
16. In order to set aside the exparte decree passed in SC.721/13, it is for the petitioner to show sufficient cause in his case. He has alleged that the process server colliding with the respondents, without bringing to his knowledge of the proceedings in SC.721/13 and Ex.443/14 obtained decree and subsequently took the possession of the suit schedule premises. But, the petitioner has not chosen to examine the said process server. The shara of bailiff reveals that the brother of the petitioner and his wife refused to receive the summons.
As per the ruling relied by the learned counsel for the petitioner reported in ILR 2001 KAR 4406 (State of Karnataka, Chief Secretary and others vs M/s.Nandi Agro Private Ltd., and others) wherein, it is held that the suit summons shall have to be served in person on the defendant unless he has an agent empowered to accept the service. Service on office clerk of the defendant is not proper service. There is no dispute as to the position of -6- NC: 2025:KHC:47044 CRP No. 539 of 2018 HC-KAR law. It is to be noted that summons issued to the petitioner by RPAD in SC.721/13 was returned with an endorsement "refused". The petitioner has not chosen to examine the postal authorities to falsify the said endorsement. The petitioner deliberately refused to receive the summons in SC.721/13, issued through RPAD post. Even though, the bailiff has affixed the summons on the address of the petitioner without order of the court, but the summons issued to the defendant by RPAD post in SC.721/13 was refused by the petitioner which is held to be sufficient. Absolutely, the petitioner has not proved before the court that he was prevented by any sufficient cause from appearing in the proceedings before SC.721/13. More over, as per the shara of the bailiff, the above said proceedings were within the knowledge of brother of the petitioner. When the summons was affixed to the address of the petitioner, it cannot be ruled out that the above said proceedings were not within the knowledge of the petitioner. Hence, the petitioner has not made out sufficient cause/grounds to set aside the judgment and decree passed in SC.721/13.
17. Secondly, report of the bailiff/ameen in Ex.443/14 reveals that the possession of the suit schedule premises was taken from the petitioner. When the delivery warrant was taken by the bailiff, the petitioner was present and it was within the knowledge of the petitioner as to the above said execution proceedings. The present petition was filed on 15-4-2016 after obtaining of possession of the suit schedule premises on 3-5-14, which could be -7- NC: 2025:KHC:47044 CRP No. 539 of 2018 HC-KAR seen from the report of bailiff in Ex.443/14. Hence, when the petitioner is parted with the possession of the suit schedule premises and there are no sufficient grounds/cause to set aside the judgment and decree passed in SC.721/13, the present petition filed by the petitioner is not maintainable for lack of sufficient grounds.
18. The learned counsel for the petitioner relied on the unreported judgment in CRP (NPD) No.3402/2013( P.Subramani vs A.Periyasamy) wherein the Hon'ble Court of Madras held that the courts are empowered to set aside the decree obtained fraudulently. There is no dispute as to the position of law. But, in this case, the petitioner himself has refused to receive the notice issued through RPAD. Therefore, the said ruling is not applicable to the case on hand. Viewed from any angle, the petitioner has not made out sufficient grounds to allow the petition that he was prevented from appearing when the suit was called on for hearing and consequently, the petition is hereby dismissed. Accordingly, I answer point No.1 in the Negative.
7. It is also noted that by filing the execution petition, landlord has already taken possession of the suit property.
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8. Learned counsel for the petitioner also brought to the notice of the Court that in respect of the dispute between the parties, an appeal is now pending in RFA No.1222/2016 before this Court.
9. Suffice to say that the petitioner herein succeeds in the said regular first appeal, the petitioner may apply for restitution of the possession of the suit property by resorting to Section 144 of the Code of Civil Procedure.
10. With that observation, following order is passed:
ORDER Civil Revision Petition is meritless and thereby dismissed.
Sd/-
(V SRISHANANDA) JUDGE SNC ct:SG List No.: 1 Sl No.: 36