HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. No.487 OF 2010 DATE:19-02-2010 BETWEEN: Badam Nirmala Devi …Petitioner AND Pyla Appayamma & Others. …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. No.487 OF 2010 ORDER: This revision under Article 227 of Constitution of India is directed by the 5th defendant against the orders of IV Additional District Judge, East Godavari at Kakinada, dated 18.8.2009 dismissing C.M.A.No.32 of 2005 while confirming the orders passed by I Additional Junior Civil Judge, Kakinada, dated 3.11.2003 made in I.A.No.1144 of 2003 in O.S.No.179 of 1992 filed under Order IX Rule 13 C.P.C. for setting aside the ex parte decree, dated 29.12.1994. The parties hereinafter will be referred to as per their array in the suit. The first respondent herein is the plaintiff and mother of the revision petitioner-5th defendant and respondents 2 to 4 and 5 are her brothers and sister who are described as defendants 1 to 4 in the suit. The suit was filed for partition of the suit schedule property and for allotment of 1/6 share to her. In the suit, an ex parte decree was passed on 29.12.1994. Later, the plaintiff filed I.A.No.950 of 1995 for passing a final decree and that the said I.A. was allowed and the matter was posted to 21.1.2003 for fining non-judicial stamp papers for engrossing final decree and therefrom, the matter was adjourned to 10.3.2003. At that stage, the 5th defendant filed I.A.Nos.1144 of 2003 and 1145 of 2003 under Order IX Rule 7 C.P.C. to set aside the ex parte decree in the main suit as well as ex parte order in I.A.No.950 of 1995 contending that she came to know through her sister-4th defendant that a final decree is being passed in the suit and that she was asked to attend the Court, and that she came to know of passing of the judgment and decree only on 6.3.2003 and prior to that she was not aware of the decree, and that the said judgment and decree are collusively obtained without her knowledge and without serving summons on her. The said petition was opposed by the plaintiff by filing a counter. To substantiate the plea, the 5th defendant herself examined as P.W.1, but no documents were marked. In view of the plea taken by the petitioner-5th defendant, the trial Court took into consideration the earlier docket proceedings, dated 18.8.1992 which reads thus: “Summons of D.5 through Court and R.P. served personally, and V.S.R.K. filed Vakalat for D.1, S.N.R. filed Vakalat to D.2, D.6 reported dead, others called absent, no representation set ex parte. For W.S. and steps by 2.9.1992.” Considering the said docket order, the trial Court was of the view that the summons through Court and registered post was served personally on the 5th defendant and she was set ex parte. Therefore, the trial Court rejected the contention of the 5th defendant that she was not served with summons and accordingly dismissed the I.A. by the impugned order. On appeal being filed, the lower appellate Court also rejected the contention of the 5th defendant that she did not receive the summons in the suit and the contention that in the lower Court the served summons were not available and without verifying the summons, it cannot be said that the 5th defendant actually received the summons. But, the lower appellate Court also once again considering the suit docket order, dated 18.8.1992 as extracted above, was of the view that the summons were served on the 5th defendant personally as well as registered post and merely because the served summons are destroyed after the statutory period, it does not mean that the 5th defendant did not receive summons. It was also observed that in the counter though the plaintiff who is none other than the mother of the 5th defendant specifically stated that the 5th defendant and her other sisters are very much residing in Kakinada and they are having cordial terms with each other and regularly her sisters are following the proceedings, the 5th defendant did not deny the same by filing a rejoinder. Further since the 5th defendant in her evidence as P.W.1 admitted that she is visiting her parents house now and then, the lower appellate Court held that when she is in cordial relations with mother and other brothers and sister, who are following the proceedings, one cannot expect that they did not inform her about the institution of the suit showing her as 5th defendant for partition of the property and holding so dismissed the appeal. The concurrent findings arrived at by both the Courts below are purely on appreciation of evidence available on record and the same do not suffer from any illegality or infirmity warranting interference by this Court in exercise of jurisdiction under Article 227 of Constitution of India. The revision fails and the same is accordingly dismissed. No order as to costs. _______________ A. GOPAL REDDY, J. FEBRUARY 19, 2010 Tsr.