THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.M.A.NO.405 OF 2005 JUDGMENT: 1. This Civil Miscellaneous Appeal is directed against the order dated 3-3- 2005 passed in I.A.No.1184 of 2004 in O.S.No.1811 of 2004 on the file of Senior Civil Judge, CCC, Hyderabad, whereby and where under the learned Senior Civil Judge allowed the application filed by D3 and D4 and set aside the exparte decree dated 14.7.2004 passed in O.S.No.1811 of 2004. 2. Background facts, in nutshell, leading to filing of this appeal by the plaintiff in the suit are: Smt.Datla Sheela-plaintiff is the daughter of D.V.Tirupathi Raju and D.V.Mehar Mani. The plaintiff executed a General Power of Attorney on 24.2.2000 in favour of her father viz., D.V.Tirupathi Raju in respect of the suit schedule property. The suit schedule property is Flat No.6, Surya Towers, East Anand Bagh, Malkajgiri. Basing on the GPA, her father executed a registered sale deed dated 27.5.2000 in favour of D.Mehar Mani who is no other than his wife. It appears D.Mehar Mani and D.V.Tirupathi Raju are Directors in M/s Bharani Oils Limited. They stood as guarantors for the loans availed by M/s Bharani Oils Limited from State Bank of Hyderabad and State Bank of India. Both the banks filed R.P.No.9 of 2002 in O.A.No.906 of 1997 on the file of Debt Recovery Tribunal, Vishakhapatnam and brought the schedule property for sale on 23.2.2003. Thereupon, the petitioner herein filed a suit against D.V.Mehar Mani, D.V.Tirupathi Raju, State Bank of India and State Bank of Hyderabad seeking the following relief: A) Cancellation of the sale deed dated 27.5.2000 in respect of the plaint schedule property; B) To direct D1 and D2 to deliver vacant portion of the suit schedule property granting such other relief or reliefs as deemed fit and proper in the interest of justice and awarding costs. D1 and D2 remained exparte. It appears D3 and D4 did not respond to the summons in the suit. Consequently a decree came to be passed against D1 and D2 granting the relief sought for. The relevant portion of the decree granted in O.S.No.1811 of 2004 dated 14.7.2004 reads as under: “ This suit coming on before me for final hearing and disposal in the presence of Sri.P.Nagabushanam, Advocate for the plaintiff and Defendant No.1 and D2 called absent and set ex-party and this court doth order and decree as follows: 1) That the suit is decreed for cancelling the sale deed, dt.27.5.2000 executed by 2nd defendant in favour of the first defendant; 2) That the defendants 1 and 2 are directed to deliver vacant possession of the suit schedule property to the plaintiff within two months from this day; 3) Since no relief is claimed against defendants 3 and 4, the suit against defendant 3 and 4 is dismissed; 4) That there shall be no order as to costs of the suit.” Thereupon, D3 and D4 filed I.A.No.1184 of 2004 to set aside the exparte decree passed in O.S.No.1811 of 2004. In support of the petitions filed by D3 and D4, one Uday Bhaskar has sworn to the affidavit. Para 2 of the affidavit needs to be noted and it reads as under: “ I submit this Honourable Court was pleased to pass an exparte decree vide orders in O.S.No.1811 of 2004 on 14.7.2004. In view of the Annual Audits, followed up by Statutory Audits, the above suit was not followed up at our branch level as the papers were mixed up in the table drawer. Immediately after tracing out of the summons in plaint copy, the same were forwarded to ARMC, HO, SBH, Hyderabad, at our Head office at Hyderabad seeking guidance. In the first week of August 2004, the ARMC, HO, SBH, Hyderabad, entrusted the matter to one of our panel advocate for further steps. After enquiries it has been revealed that the suit was decreed on 14.7.2004 itself. Immediately the present application is made to set aside the exparte decree.” The respondents/plaintiffs filed counter resisting the application. It is stated in the counter affidavit that pursuant to the decree granted in the suit, D1 and D2 delivered vacant possession of the suit schedule property to her and a document dated 10.8.2004 came to be executed evidencing the delivery. Paras 9 and 10 of the counter affidavit need to be noted and they read as under: “ 9. I humbly submit that as per the decree of the Honourable Court, the defendants 1 and 2 who are respondents 2 and 3 in this petition are directed to deliver the vacant possession of the plaint schedule property to me within two months from the date of decree. After passing of the decree, I demanded defendants 1 and 2 to deliver the vacant possession of plaint schedule property as per the decree since the sale deed was cancelled by the Honourable Court and I also demanded them, if they fail to hand over the possession to me, I had to execute the decree through process of law which may create unpleasant situation in the apartments i.e. in the complex. 10. Under these circumstances, the defendants 1 and 2 delivered vacant possession of plaint schedule property to me and a document dated 10.8.2004 was executed on Rs.100 worth stamp papers between me and the defendants 1 and 2 i.e., on the date of delivery of vacant possession in pursuance of the decree. Thus, the decree was also executed and the alleged rights and possession of defendants 1 and 2 in suit property stood extinguished.” The learned Senior Civil Judge, on considering the material brought on record and on hearing learned counsel appearing for the parties, proceeded to allow both the applications by a common order dated 3.3.2005. Hence, this appeal by the appellant/plaintiff assailing the order dated 3-3-2005 passed in I.A.No.1184 of 2004 in O.S.No.1811 of 2004 on the file of Senior Civil Judge, CCC, Hyderabad. 3. Notice before admission came to be ordered on 9.6.2005. The respondents entered appearance and filed counters. An interim stay as sought for came to be granted on 28-6-2005. The respondents entered appearance and filed CMAMP.No.505 of 2006 with a prayer to vacate the interim order dated 28.6.2005. This court while disposing of the vacate stay petition directed the Registry to list the matter for final hearing in August, 2006. Hence, this appeal is taken up for final hearing at the stage of admission. 4. Heard learned counsel appearing for the parties. 5. Learned counsel appearing for the appellant submits that there being no decree against R1 and R2 herein who are D3 and D4 in the suit, the question of their filing the application under Order IX Rule 13 CPC does not arise. A further submission has been made that R1 and R2 have not given any satisfactory reasons for their not filing the written statement and contesting the suit and in which case the order passed by the trial Court allowing I.A.No.1184 of 2004 is liable to be set aside. 6. Learned counsel appearing for R1 and R2 submits that by virtue of the decree obtained by the appellant/plaintiff, she wants to avoid the payment of amounts, which have been lent to M/s Bharani Oils Limited. A further submission has been made that property has been brought for attachment as per the procedure and as on the date of attachment, D1 was owner of the premises and subsequent cancellation of the sale deed adversely affects the interest of D3 and D4. 7. The contention of the learned counsel appearing for the appellant appears to be appealing at the first blush, but on close scrutiny of the material brought on record, I do not tender myself legally to reject the same. 8. At the cost of repetition, I deem it appropriate to narrate the relationship between the appellant, R3 and R4 herein. The appellant is the plaintiff and R3 and R4 are D1 and D2 in the said suit. The plaintiff is no other than the daughter of D1 and D2. She executed a GPA in favour of her father who has been arrayed as D2. Basing on the GPA, D2 executed a sale deed in favour of D1 who is no other than his wife. The plaintiff filed the suit seeking cancellation of the sale deed executed by her father in favour of her mother on the ground that it is vitiated by fraud and collusion. D1 and D2 did not contest the suit and they remained exparte. Consequently, suit against D1 and D2 came to be decreed. The plea of the plaintiff is that D1 and D2 put her in possession of the property after the decree has been passed in the suit. Keeping in view the background facts, the contentions advanced by learned counsel for the appellant are required to be dealt with. 9. Learned counsel appearing for the appellant submits that there being no decree against R1 and R2 the application under Order IX Rule 13 CPC is not maintainable. Order IX Rule 13 CPC reads as under: “ Setting aside decree exparte against defendant: In any case in which a decree is passed exparte against a defendant, he may apply to the Court by which the decree was passed for order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed exparte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. Explanation: Where there has been an appeal against a decree passed exparte under this rule and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that exparte decree.” 10. It is not to be forgotten that as on the date of filing of the suit D3 and D4 got the property attached. D1 was the owner of the property as on the date of attachment. By virtue of the decree granted earlier, the plaintiff in the suit becomes the owner and in which case the very attachment of the property will become ineffective. Therefore, D3 and D4 are the affected parties by virtue of the decree granted in favour of the plaintiff and against D1 and D2. In these circumstances, the application filed by D3 and D4 to set aside the exparte decree passed in the suit is maintainable. 11. The next question is whether D3 and D4 have offered sufficient reasons to set aside the exparte decree. The relevant portion of the affidavit filed in support of the petition has been extracted supra. The circumstances under which D3 and D4 could not enter appearance in the suit have been explained promptly, which amounts to offering sufficient reasons. 12. The trial court considered the material brought on record in right perspective and proceeded to allow the application filed by D3 and D4 to set aside the exparte decree dated 14.7.2004 passed in O.S.No.1811 of 2004. I do not see any flaw in the order impugned in this appeal. 13. Accordingly, this Civil Miscellaneous Appeal is dismissed. 1st February, 2010. (B.Seshasayana Reddy,J) tnb THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.M.A.NO.405 OF 2005 1ST FEBRUARY 2010. THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.M.A.NO.405 OF 2005 1ST February, 2010. BETWEEN: DATLA SHEELA .. APPELLANT AND STATE BANK OF HYDERABAD AND OTHERS.. RESPONDENTS