THE HON’BLE MR JUSTICE L. NARASIMHA REDDY C.M.A.No.1621 of 2002 JUDGMENT: The appellant filed O.S.No.144 of 1980 in the Court of the I Additional Senior Civil Judge, Visakhapatnam against respondent Nos.4 to 11 for the relief of recovery of possession of an item of immovable property, admeasuring Ac.1.21 cents of land situated at Bheemunipatnam, Visakhapatnam. The suit was decreed and by filing E.P.No.201 of 1983, the appellant got delivery of possession of the property. Respondent Nos.1 to 3, who are third parties to the suit filed E.A.No.42 of 1984 under Rules 99, 100 and 101 of Order 21 C.P.C. with a prayer to direct that the possession of the property be redelivered to them. They pleaded that they are the actual owners of the said property and taking advantage of the fact that they are residents of Hyderabad, the possession of that property was taken. The application was contested by the appellant. Through its order, dated 28.04.1993, the executing Court dismissed the E.A. Respondent Nos.1 to 3 filed A.S.No.73 of 1993 in the Court of the IV Additional District Judge, Visakhapatnam. The appeal was allowed through judgment, dated 30.03.1994 observing that the appellant herein was set ex parte on 07.09.1993 and that the other respondents supported the case of respondent Nos.1 to 3. The appellant filed I.A.No.734 of 1997 in A.S.No.73 of 1993 under Rule 21 of Order 41 C.P.C. with delay. The delay was condoned, but the application was dismissed on 01.12.1999. The lower appellate Court took the view that the judgment rendered by it on 30.03.1994 is not ex parte in nature and that the appellant did not invoke the correct provision of law. Another observation made by the lower appellate Court was that the petition ought to have been filed under Rule 19 and not of Rule 21 of Order 41 C.P.C. Challenging the order, dated 01.12.1999, the appellant filed this appeal. Heard Sri S.Srinivas Reddy, learned counsel for the appellant and Smt.Surya Kumari, learned counsel for respondent Nos.1 to 3. None appears for the other respondents. This case presents a series of errors committed by the lower appellate Court. The appeal arose out of an application filed under Rules 99, 100 and 101 of Order 21 C.P.C. by respondent Nos.1 to 3. After serious contest, the executing Court dismissed the E.A. In its judgment, dated 30.03.1994, the lower appellate Court observed that the appellant herein who figured as respondent No.1 and who alone is contesting the matter was set ex parte on 07.09.1993. Mention was also made to the effect that the other respondents, who entered appearance, supported the case of respondent Nos.1 to 3 i.e. the appellants in that appeal. After mentioning that, it proceeded to observe that the appeal is decided ex parte against the appellant herein. The appellant came to know about this development only in the year 1997. Stating that its advocate did not contact it after it entered appearance, it filed an application under Rule 21 of Order 41 C.P.C. The learned Presiding Officer, who dealt with the I.A.No.734 of 1997 took pains to explain that the judgment, dated 30.03.1994, is not ex parte in nature. It is rather unfortunate that neither the specific words employed in the judgment nor the purport thereof were taken into account. In the judgment, dated 30.03.1994, it was mentioned that the appellant herein is set ex parte and that the matter is decided ex parte. In addition to that, not a word was mentioned about the merits of the matter. Even if one ignores the words ‘ex parte’ employed in the judgment, it would partake the character of an ex parte judgment, since the appeal was not decided on merits. The second error committed by the lower appellate Court is as regards its endeavour to find fault with the provision of law, invoked by the appellant. The application was filed under Rule 21 of Order 41 C.P.C., which is equivalent to Order 9 Rule 13 C.P.C. By observing that the correct provision of law was not invoked, the learned Judge opined that Rule 9 of Order 41 C.P.C. ought to have been pressed into service. That Rule discloses that it is akin to Rule 9 of Order 9 C.P.C. available, to a plaintiff in a suit or the appellant in an appeal. Admittedly, the appellant herein was respondent in A.S.No.73 of 1993. Therefore, the correct principle of law, that it could have invoked is Rule 21 of Order 41 C.P.C., which in fact, it did. It is rather unfortunate that the benefit of a decree obtained by the appellant, and execution thereof were taken away by undertaking such an erroneous exercise. It is true that more than one decade has elapsed ever since the lower appellate Court decided the appeal. However, the cumulative effect of errors committed one after the other at that stage, cannot be permitted to remain. Hence, the appeal is allowed and the order under appeal is set aside. As a consequence, I.A.No.734 of 1997 is allowed and the order, dated 07.09.1993 setting aside the appellant ex parte; and the resultant judgment, dated 30.03.1994 are set aside. The lower appellate Court is directed to decide the matter afresh, after giving opportunity to the parties concerned. There shall be no order as to costs. _________________________ L.NARASIMHA REDDY,J Dt:23.07.2010 Note: L.R. copy to be marked. kdl