Karnataka High Court
Smt. Kempawa @ Champavati W/O Sidagouda ... vs Shri. Basappa Lagamappa Giddagol, on 8 December, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
M.F.A.No.25018/2011
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF DECEMBER, 2017
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL NO.25018/2011 (CPC)
BETWEEN:
SMT.KEMPAWA @ CHAMPAVATI
W/O SIDAGOUDA GIDDAGOL,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O KURANI-591 286.
TALUKA: HUKERI, DIST: BELGAUM
... APPELLANT
(BY SRI.M.G.NAGANURI, ADV.)
AND:
1. SHRI.BASAPPA LAGAMAPPA GIDDAGOL,
SINCE DECEASED BY HIS LRS.
1A. SIDDAWWA W/O BASAPPA GIDDAGOL,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O KURNI-591 286,
TALUKA: HUKERI, DIST: BELAGAVI.
1B. BEERAPPA BASAPPA GIDDAGOL,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O KURNI-591 286,
TALUKA: HUKERI, DIST: BELAGAVI.
1C. SMT.KALLAWWA W/O LAXMAN PUJARI,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O KURNI-591 286,
TALUKA: HUKERI, DIST: BELAGAVI.
2. SHRI.SATAPPA LAGAMAPPA GIDDAGOL,
AGE: 62 YEARS, OCC: AGRICULTURE & SHEPARD,
R/O KURNI-591 286,
TALUKA: HUKERI, DIST: BELAGAVI.
M.F.A.No.25018/2011
:2:
3. SHRI.SHIVALING LAGAMAPPA GIDDAGOL,
AGE: 59 YEARS, OCC: AGRICULTURE & SHEPARD,
R/O KURNI-591 286,
TALUKA: HUKERI, DIST: BELAGAVI.
... RESPONDENTS
(SRI.S.B.HEBBALLI, ADV.FOR R1(A, B & C), R2 & R3)
THIS APPEAL IS FILED UNDER SECTION 384 OF INDIA
SUCCESSION ACT, 1925, AGAINST THE JUDGMENT AND ORDER
DATED 05.08.2011 PASSED IN MISC.NO.69/2010 ON THE FILE OF
THE PRINCIPAL DISTRICT JUDGE, BELGAUM ALLOWING THE
PETITION FILED UNDER SECTION 263 OF INDIAN SUCCESSION
ACT, 1925.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant herein was the respondent before the Court of Principal District Judge, Belagavi (hereinafter referred to as 'the Court below', for brevity) in Miscellaneous No.69/2010. The respondents herein had instituted a petition in the Court below against the present appellant under Section 263 of the Indian Succession Act, 1925 seeking for revocation of probate granted by the Court below vide its order dated 15.03.1996 in P & SC No.9/1995 in respect of a Will dated 26.05.1993 said to have been executed by the deceased testator Smt. Kallavva M.F.A.No.25018/2011 :3: in favour of the present appellant. The Court below by its impugned order dated 05.08.2011 allowed the said petition setting aside its order dated 15.03.1996 passed in P & SC No.9/1995 granting probate of the Will dated 26.05.1993 of deceased Kallavva in favour of the present appellant. The present appellant was also directed to implead the present respondents in the said P & SC No.9/1995 and to amend the petition for grant of probate. Being aggrieved by the said order, the appellant has preferred this appeal.
2. In her memorandum of appeal, the appellant has taken a contention that the Court below failed to notice that respondent No.3, who was examined as PW1 has clearly admitted in his evidence that the Court had issued citations in the probate case. Besides this, the respondents were aware about the Will as well as the probate granted by the Court below inasmuch as appellant had produced the same (i.e., Will and Probate) in O.S.No.217/1992. It is further contended that the Court M.F.A.No.25018/2011 :4: below failed to note that, though the respondents filed an application at I.A.No.1 for condonation of delay, it did not consider the same and disposed it, though it is a settled law that the Court shall dispose of interim applications at appropriate stage of proceedings. However, it proceeded to pass order on merits. Therefore, the order impugned is illegal and liable to be set aside. The Court below failed to note that the respondents did not make out any ground to seek rejection of the probate granted in P & SC No.9/1995. Thus, without there being any evidence on record, it committed a serious error in holding that the respondents would have inherited the properties left by the deceased Kallavva as reversioners under Hindu Succession Act, 1996 and hence they are necessary parties in probate proceedings.
3. In response to the notice, respondents are being represented by their counsel. During the pendency of the appeal, due to the death of respondent No.1, his M.F.A.No.25018/2011 :5: legal representatives are brought on record as respondents No.1(a), 1(b) and 1(c).
4. The lower Court records were called for and the same are placed before this Court.
5. Though this matter had come up for admission, with the consent of learned counsel for both the parties, the matter was taken up for disposal.
6. Heard the arguments from both sides.
7. It is the argument of the learned counsel for the appellant that revocation petition which was originally numbered as Miscellaneous Case No.84/2007 and subsequently numbered as Miscellaneous Case No.69/2010 was filed with a delay of 11 years, 3 months and 20 days, in which after deducting a period of 3 years as limitation, still there is a delay of 8 years 3 months 20 days. Seeking condonation of delay, though the petitioners in the Court below had filed Interlocutory Application, but the same was not considered at all by the M.F.A.No.25018/2011 :6: Court below, as such, keeping the limitation aspect undecided, the disposal of the main petition is bad in the eyes of law. Therefore, the impugned order deserves to be set aside.
8. In support of his argument the learned counsel for the appellant relied upon several decisions of this Court as well of the Hon'ble Supreme Court which are as below:
In Shri Dharmoji Devendra Kadabi vs. The Assistant Commissioner reported in ILR 1998 KAR 1030 a coordinate Bench of this Court was pleased to hold that, it is settled law that unless the Courts condone the delay in filing the proceeding before it, the Court does not get jurisdiction to entertain a proceeding.
In Nazirahmed vs. The Deputy Commissioner, Belagavi and others reported in 2015 (2) AKR 828 another coordinate Bench of this Court was pleased to reiterate the said view by observing that, it is now well settled that when there is delay in filing the appeal or M.F.A.No.25018/2011 :7: revision petition and application was filed for condoning the delay, the application for condonation of delay has to be decided in the first instance and only if the delay is condoned, the appeal or revision can be disposed of on merits and appeal or revision cannot be disposed of without giving any finding in the application for condonation of delay as the Appellate Authority or Revisional Authority will get jurisdiction to decide the appeal or revision on merits only after the delay is condoned.
In Marigouda Chanabasappa Marigoudar vs. Sattepa Veerappa Koujalagi since deceased by LRs.
reported in 2015 (1) KCCR 468 one more coordinate Bench of this Court while reiterating the same view was pleased to observe in paragraph 14 of its judgment as below:
"After perusing the impugned judgment passed by the First Appellate Court, it appears that, though the appeal is dismissed holding that I.A.IV filed under Section 5 of the Limitation Act is rejected, M.F.A.No.25018/2011 :8: the learned Judge has considered the aspect of maintainability of the appeal also. the Court before which an application will be filed under Section 5 of the Limitation Act, especially in regard to the condonation of delay in filing of the appeal is concerned, the Court has to show whether the cause shown for condonation of delay is acceptable or not. Considering the question of maintainability or merits will arise only after the delay is condoned and appeal is taken on file. The Court will not get jurisdiction to give its findings on the maintainability of an appeal or about the merits, unless the appeal is taken on file by condoning the delay."
In Veera Vahana Udyog Pvt. Ltd., Rep. by its M.D. vs. The Karnataka State Road Transport Corporation, Rep. by Managing Director and Others reported in ILR 2010 KAR 507 a Division Bench of this Court noticed that after disposal of the main matter (writ petition) on merits the learned Single Judge had dismissed the application filed under Order VI Rule 17 of the Code of Civil Procedure as having become infructuous. In this regard while observing that the said procedure followed by M.F.A.No.25018/2011 :9: the learned Single Judge was not just and proper, the Division Bench was pleased to observe as below:
" 42. An Interlocutory Application is filed seeking consideration before the final disposal of a case. The Courts should therefore consider such Interlocutory Applications at the earliest point of time. It is only as a matter of exception and based on the facts and circumstances of the case that an Interlocutory application could be considered at the stage of final disposal of the case for reasons to be recorded. In the instant case the Learned Single Judge has failed to take note of the existence of the Interlocutory application. It is only after the Judgment, was pronounced that, the order on the Interlocutory application was passed separately. This would imply that not only at the stage of final arguments but also while pronouncing the Judgment, the Learned Single Judge has not considered the same.
43. The procedure adopted by the Learned Single Judge in rejecting the Interlocutory application as having become infructuous due to the final disposal of the case is not only erroneous but is opposed to the basic principles of Jurisprudence. We would reiterate that all Applications filed during M.F.A.No.25018/2011 : 10 : the pendency of a case would necessarily have to be considered at the earliest point of time. The procedure adopted by the Learned Single Judge in finally hearing the matter without considering the pending application is not only erroneous but a procedural irregularity. The Courts are duty bound to consider all Interlocutory Applications before the consideration of the final case on merits. Exceptionally the same may be considered at the stage of final hearing for reasons to be recorded. The failure to consider the application before passing an order on merits is erroneous. The procedure adopted by the Learned Single Judge is erroneous and opposed to law."
The sum and substance of all the above decisions is that, before or in exceptional cases at the time of disposal of main matter, all the pending Interlocutory Applications are required to be disposed of.
Learned counsel for the appellant as an additional point also submitted that, petition for revocation of grant of probate, not being an application filed for grant of probate and therefore it is not a case of party seeking Court for recognition from Court to perform a duty, as M.F.A.No.25018/2011 : 11 : such Article 137 squarely applies to an application filed seeking revocation of probate. In that regard he also relied upon a judgment of a coordinate bench of this Court in Mrs.Lynette Fernandes vs. Mrs.Gertie Mithias (dead) by L.Rs reported in 2007 (2) Kar.L.J. 413 wherein it was observed that, only in respect of the application filed for grant of probate Article 137 of the Limitation Act has been made inapplicable. There is no escape from the said article where the application is filed under Section 263 of the Indian Succession Act seeking revocation of grant of probate.
9. Learned counsel for the respondents in his argument though did not deny that the present respondents as petitioners in the Court below, apart from filing a petition under Section 263 of the Indian Succession Act seeking revocation of the probate, had also filed Interlocutory Application under Section 5 of the Limitation Act seeking condonation of delay, if any, vehemently submitted that the said application was filed M.F.A.No.25018/2011 : 12 : only as an abundant caution. There was no delay in filing the petition. It is for the said reason, in the application, the applicant had only stated to condone the delay, if any, without mentioning any specific length of the delay.
Secondly, he also submitted that the respondent in the Court below who is the appellant in this appeal, had not raised any objection in her statement of objection regarding the alleged delay in filing the petition. As such, she cannot now contend that Interlocutory Application filed under Section 5 of the Limitation Act ought to have been disposed of before disposal of the main petition.
Thirdly, he further contended that, when the petitioners had filed Interlocutory Application under Section 5 of the Limitation Act in the Court below, primarily it was for the Court to dispose of the said Interlocutory Application before it could take up the main matter for disposal, which it did not do. Secondarily, it was the duty of the respondent in the Court below to bring to the notice of the Court about the pendency of the said M.F.A.No.25018/2011 : 13 : Interlocutory Application and to request the Court for its disposal. Since neither of them have discharged their obligation in that regard, the non-disposal of the Interlocutory Application even at the time of disposal of the main petition cannot be considered as illegal or erroneous.
Fourthly, he also submitted that the appellant herein has suppressed the fact that, after revocation of the probate and restoration of the probate petition bearing P & SC No.9/1995, the petitioner therein who was till then the probate holder, appeared in the proceeding and contested the matter in its further proceedings. By producing certified copy of the order sheets in then P & SC No.9/1995 (now O.S.No.6/2011) learned counsel drew the attention of this Court to the proceedings dated 24.09.2011, 04.11.2011 and 12.12.2011. From those proceedings it is clear that, as per the order passed in Miscellaneous Case No.69/2010 (the order challenged under this appeal), the probate issued earlier was revoked M.F.A.No.25018/2011 : 14 : and the P & SC No.9/1995 was restored on board directing the petitioner therein to implead the present respondents in the said petition. Thereafter by order dated 04.11.2011 the Court below by observing that the factum of execution of Will being seriously disputed by respondents, the proceeding was ordered to be converted into a suit. Accordingly, P & SC No.9/1995 was converted into O.S.No.6/2011. Thereafter from the order sheet of the Court below it is noticed that the petitioner/plaintiff before the Court below participated on several dates of hearing and on 12.12.2011 she filed valuation slip which was taken on record by the Court below and the Court below also framed issues in the suit and posted the matter for evidence by the parties. It was at this stage the petitioner/plaintiff therein (the appellant herein) preferred the present appeal and by the interim order passed by this Court in this appeal, the further proceeding in O.S.No.6/2011 was stayed awaiting further orders in this appeal.
M.F.A.No.25018/2011: 15 :
Bringing these aspects to the notice of this Court and stating that the present appellant had suppressed all these further developments, the learned counsel for the respondents in his argument submitted that the act of the present appellant in not taking objection for non-disposal of Interlocutory Application filed under Section 5 of the Limitation Act, on the other hand participating in further proceeding in the original petition (P & SC No.9/1995 / O.S. No.6/2011) go to show that the present appellant has waived her right and shown her acquiescence for further proceeding in the matter, as such is estopped from now contending that Interlocutory Application filed under Section 5 of the Limitation Act is still pending.
In his support he relied upon a judgment of the Division Bench of Punjab High Court in Inder Singh vs. Deputy Commissioner and other reported in AIR 1957 Punjab 60, wherein a Division Bench of the Punjab High Court was pleased to observe that, failure of a party to object when it had a right to do so before the trial Court M.F.A.No.25018/2011 : 16 : constitutes a waiver of the right to object and precludes him from exercising the said right in the appellate Court. Such waiver or estoppel may arise from mere silence or inaction or from inconsistent conduct or statements or from admission, conscience, consent or acquiescence or from acceptance of the benefits of a ruling of the trial Court or its judgment or decree or from an error which was invited by the party itself.
Learned counsel referring to a judgment of a coordinate bench of this Court delivered in The State of Karnataka vs. Vimalchand and others reported in ILR 1996 KAR 1840 again reiterated that the plea of limitation had not taken by the present appellant in the Court below. In the said case of Vimalchand (supra), this Court was pleased to observe as below:
"Really, from the conduct of the defendants - appellants by their not raising this plea in the written statement as well as their non rising this plea at the time of framing of the issues and not raising this plea at the time of hearing of the first appeal and even if this plea was raised in the M.F.A.No.25018/2011 : 17 : grounds of the appeal, but, no argument was advanced, the plea should be deemed to have been waived."
10. In reply, learned counsel for the appellant apart from stating that there is no estoppel against the statute, also submitted that merely because she has participated in further proceedings in P & SC No.9/1995 (O.S. No.6/2011), the same would not preclude him from challenging the very order of revocation of probate passed in Miscellaneous Case No.69/2010, which is the order challenged in this appeal.
In his support he relied upon a judgment of Hon'ble Apex Court in Vijay Singh vs. Shanti Devi and another reported in (2017) SCCR 820 and drew the attention of this Court to the observation made in the first part of paragraph No.17 in the said judgment which reads as below.
"It would be pertinent to mention that the mere fact that the ex-parte decree has been executed does not disentitle the defendant from M.F.A.No.25018/2011 : 18 : applying under Order 9 Rule 13, CPC to get the same set aside."
11. The undisputed fact remains that, in the Court below the present respondents as petitioners had filed an Interlocutory Application under Section 5 of the Limitation Act and the said application has remained undisposed of even though the main petition itself was disposed in favour of petitioners therein. The summary of all the judgments relied upon by the learned counsel for the appellant herein except the one in the case of Mrs. Lynette Fernandes (supra) is that, Interlocutory Applications are required to be disposed of before disposal of the main petition/appeal, however, in exceptional cases the Interlocutory Application may be taken up along with the main matter for its disposal. Thus it is clear that no petition or appeal can be disposed of keeping pending the Interlocutory Applications. As such, according to the appellant herein, the Court below is not justified in disposing of the main petition filed under Section 263 of M.F.A.No.25018/2011 : 19 : the Indian Succession Act, keeping pending the Interlocutory Application filed under Section 5 of the Limitation Act.
12. As observed above, it is one of the argument of the learned counsel for the respondents that there was no delay. However, the Interlocutory Application under Section 5 of the Limitation Act was filed only as an abundant caution. The said argument of the learned counsel for the respondent is not acceptable for the reason that, an application in a Court of law with some prayer like condonation of delay cannot be made only as an abundant caution. The person who files a petition or an appeal must be clear as to the limitation aspect and if according to him, the petition or appeal or application or suit filed by him is within the period of limitation, then he need not has to file any application seeking condonation of delay, but is required to convince the Court when the question of limitation arises, that there was no delay in filing the application/petition/suit/appeal, etc., as such, M.F.A.No.25018/2011 : 20 : filing an application under Section 5 of the Limitation Act as an abundant caution would not arise.
13. Secondly, if the party desires to file an application seeking condonation of delay, he has to be clear as to the length of the delay which he is seeking condonation of. It is because he is expected to explain the delay caused in the matter and show the sufficient cause which prevented him from approaching the Court within the period of limitation. Such a delay can only be explained or reasons showing the sufficient cause can be given, provided he knows the length of the delay. If he does not know the length of the delay, then he cannot convincingly explain the delay or show the sufficient cause or reasons which prevented him from approaching the Court within the time. As such, the arguments of learned counsel for the respondents that Interlocutory Application under Section 5 of the Limitation Act was filed only as an abundant caution, as such, he has sought condonation of "delay if any" cannot be accepted.
M.F.A.No.25018/2011: 21 :
14. Thirdly, the adjudication of the matter though will be by the Court, but it will be with the assistance of the learned counsels from both side to the litigation. The learned counsels being the officers of the Court would assist the Court in it arriving to a just and proper conclusion. In that process irrespective of the rank of the parties they are expected to assist the Court in all legally permissible ways in it arriving at a just conclusion. One such way is also by bringing to the notice of the Court about the pendency of the Interlocutory Applications for disposal, if any. No doubt though primarily it is for the Court to see that all pending Interlocutory Applications are disposed of before disposing of the main matter, but by that itself it cannot be said that the learned counsels representing the parties in the matter have no duty towards the Court in bringing to the notice of the Court about the pendency of the Interlocutory Applications if any. When a party has filed an Interlocutory Application under Section 5 of the Limitation Act, basically he is M.F.A.No.25018/2011 : 22 : required to be more concerned and anxious to see that the said Interlocutory Application is disposed of at the earliest, so that if delay is condoned he gets clearance in proceeding further in the matter regarding its admission and final adjudication. That being the case, the argument of the learned counsel for the respondents herein that it was solely for the present appellant, who was the respondent in the Court below, to bring to the notice of the Court about the pendency of the Interlocutory Application under Section 5 of the Limitation Act is also not acceptable.
15. Fourthly, though it is the settled principle of law that there can be no estoppel against the statute, but the alleged conduct of the present appellant as a respondent in the Court below cannot be lost sight of. Undisputedly, the present appellant was the recipient of a probate in his favour by the Court below earlier. It is a settled principle of law that a judgment rendered in a probate proceeding would not be determinative of the M.F.A.No.25018/2011 : 23 : question of title. If a probate has been obtained by fraud or suppression of material fact, the same can be the subject matter of the revocation of the grant in terms of Section 263 of the Indian Succession Act.
In the instant case, even though without disposal of the Interlocutory Application filed under Section 5 of the Limitation Act, the Court below disposed of the main case itself in Miscellaneous Case No.69/2010 and revoked the probate granted in favour of the appellant herein, the appellant did not challenge the same immediately thereafter. On the other hand she accepted the said verdict of the Court below, submitted herself for further proceedings in the matter. As could be seen in the order sheet dated 24.09.2011, she was directed to implead the present respondents as respondents in the said probate petition, in view of the order dated 05.08.2011 passed in Miscellaneous Case No.69/2010. It also permitted the present respondents to file their objection. The present appellant as a respondent in the Court below accepted the M.F.A.No.25018/2011 : 24 : said order and acted upon it. It is thereafter, considering the fact that the factum of the alleged execution of Will by the deceased testator was seriously disputed by the respondent, the claim for probate was considered as contentious, as such the probate petition was ordered to be converted in to a suit. The present appellant as a petitioner in the said proceeding did not challenge the said order also. Rather, he paid the requisite Court fee and filed valuation slip as per order dated 12.12.2011 of the Court below. Accordingly, the P & SC petition was ordered to be registered as an original suit, as such it was registered as O.S.No.6/2011. The Court below also proceeded to frame the issues based upon the pleadings of the parties and posted the matter for evidence. It is only at that stage the petitioner/plaintiff therein has challenged the order passed in Miscellaneous Case No.69/2010 revoking the probate granted in her favour earlier by the Court.
M.F.A.No.25018/2011: 25 :
16. Thus, as has been observed by the Rajasthan High Court in Inder Singh's case (supra) the failure on the part of the appellant herein (petitioner in the probate proceeding), when she had a right to do so before the said Court, has constituted into a waiver of her right to object and has precluded her from exercising the said right in the appellate Court. It has amounted in the waiver of her right by her act in actively participating in further proceeding of the same matter even after its restoration and up to its conversion into a original suit and framing of the issues. Thus, her inconsistent conduct, her act resulting into waiver or her acquiescence estops her from now taking a contention that in view of the non-disposal of the Interlocutory Application filed under Section 5 of the Limitation Act, the entire order in Miscellaneous Case No.69/2010 gets vitiated.
M.F.A.No.25018/2011: 26 :
17. The learned counsel for the appellant relying upon Vijay Singh's case (supra) argued that merely because she has participated in the restored proceeding would not preclude her from challenging the earlier order passed in Miscellaneous Case No.69/2010. In the said Vijay Singh's case (supra), no doubt the Hon'ble Supreme Court at paragraph No.17 of its judgment was pleased to observe that, the mere fact that the ex-parte decree has been executed does not disentitle the defendant from applying under Order 9 Rule 13 of the Code of Civil Procedure to get the same set aside. However, in the very same judgment at its subsequent paragraph i.e., paragraph No.19 and at paragraph No.20 it has observed as below:
"19. An ex parte decree is passed when the Court believes that the defendant has been served but is not appearing in Court despite service of summons. In the present case, the appellate Court while setting aside the ex parte decree, has come to the conclusion that the defendant Shanti Devi (respondent No.1 herein) was not served and, M.F.A.No.25018/2011 : 27 : therefore, the Court had wrongly proceeded against her ex parte. That finding has been upheld till this Court. In our view, the effect of this would be that the ex parte decree, on its being set aside, would cease to exist and become non-est. After the ex parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial Court on merits should be treated as the decree of the first Court. We may make it clear that we are not dealing with those cases where a case has been decided on merits and the decree is set aside by the appellate Court on any other ground and the matter remanded to the trial Court for decision afresh. We leave that question open.
20. Here, we are dealing with a case where the defendant was proceeded against ex parte and that order has been set aside on the ground that she has not been served and, therefore, she has been relegated to the position existing on the date she was proceeded against ex parte, i.e., 6th April, 1990. After the amendment was introduced on 17th May, 1995, there was no right existing in the plaintiff to file a suit for pre-emption. Since the decree on contest was passed on 27th November, 1999 the plaintiff had no existing right of pre- emption on that date and the suit was rightly M.F.A.No.25018/2011 : 28 : dismissed. This decree is the only subsisting decree of the first Court."
18. Thus, the Hon'ble Apex Court made it clear that, even if a party was placed ex-parte, but if the case has been decided on merits and the decree is set aside by the appellate Court on any other ground and the matter was remanded to the trial Court for a decision afresh, the observation made by it at paragraph No.17 would have no bearing. At this juncture it also cannot be lost sight of the fact that, in a case of a petition under Order 9 Rule 13 of the Code of Civil Procedure, if a person would contend that he is a proper and necessary party to the litigation, despite that he was not heard and in his absence the rights of the parties have been determined placing him ex- parte, as such, his interest is affected, it is for the said reason even though the ex parte decree is executed, still in such situation the aggrieved party is considered to be not disentitled from applying under Order 9 Rule 13 of the Code of Civil Procedure to get the same set aside. M.F.A.No.25018/2011 : 29 : Whereas, in the instant case, the situation would be totally other way round. The person who has got revocation claims himself to be an interested and necessary party for the proper adjudication of the petition for probate. Therefore, he has filed a petition for revocation of the probate. As such, it is his interest which would remain affected if he has not been heard in the matter. Therefore, the ruling of Vijay Singh's case (supra) would not enure to the benefit of the appellant herein.
19. From the above it is clear that the Court below no doubt has committed an error by disposing of the main petition on its merit without disposing of the Interlocutory Application filed under Section 5 of the Limitation Act. However, the said error has not resulted in prejudice to the interest of the respondent before it (appellant herein). Further, the conduct of the appellant herein clearly evidences that she has accepted and acted upon the said order of the Court below in revocation of the probate and has participated in further proceeding even after its M.F.A.No.25018/2011 : 30 : restoration till the proceedings was converted into a original suit, received the objections from the present respondents, issues were framed and the matter was posted for evidence. As such, now the appellant cannot seek setting aside of the impugned order passed by the Court below in Miscellaneous Case No.69/2010.
20. Therefore, confining to the very special facts and circumstances of the case and without letting to take it as a precedent suffice, if it is said that the appellant has not made out grounds to allow the appeal.
Accordingly, I proceed to pass the following order.
ORDER The appeal is rejected.
Sd/-
JUDGE ykl /gab