THE HON’BLE SRI JUSTICE C.V.RAMULU C.M.A.No.1427 of 2003 ORAL JUDGMENT: This Civil Miscellaneous Appeal under Order 43 Rule 1 of C.P.C. is filed questioning the order passed in I.A.No.414 of 1995 in O.S.No.71 of 1981 dated 13.3.2003 on the file of the learned Senior Civil Judge, Jagtial, Karimnagar district. It appears, appellant is Defendant No.46, first respondent is plaintiff and respondents 2 to 46 are defendants in the suit O.S.No.71 of 1981, which was filed for partition and separate possession of the suit schedule property. The said suit was decreed ex parte on 7.4.1995 against the appellant-defendant N.46. The case of the appellant is that he was inducted into possession of the suit property by virtue of purchase made by him. According to him, the suit is a collusive one filed for getting a decree to recover possession by playing fraud on the Court. Therefore, he filed the present I.A. stating that no notice was served to him in the suit and he did not engage any counsel on his behalf. However, the said application was dismissed by the Court below vide order dated 13.3.2003, which reads as under: “Heard, perused record. As per docket order dated 30.1.1995 Sri R.Narender, Advocate offered vakalat for defendant No.46. Thereafter, he failed to file vakalat for defendant No.46 and court recorded on 23.2.1995 setting defendant No.46 ex parte. In those circumstances, the defendant No.46 cannot agitate that the summons in the suit were not served on him. That is the only ground argued for the petitioner. Hence, the ground urged is not open to him, having instructed an Advocate to represent him. Giving instructions by petitioner/defendant No.46 to such advocate can be inferred. His contention now he did not instruct him is not probable as no circumstances suggesting fraud. Hence, petition is merit less and it is dismissed.” Being aggrieved by the said order, the present C.M.A. is filed. It is unfortunate that such an order is passed by the trial Court. Neither the said Narender was summoned and examined before the Court to say that he had instructions from the appellant to appear on his behalf in O.S.No.71 of 1981, nor it is stated in the order that on verification, it was found that notices were served on the appellant. The reasons furnished by the lower Court do not stand to scrutiny of law. Therefore, the order under appeal is liable to be set aside. In the result, the C.M.A. is allowed and the order dated 13.3.2003 made in I.A.No.414 of 1995 is set aside. The matter is remanded to the learned Senior Civil Judge, Jagtial, Karimnagar district for reconsideration of I.A.No.414 of 1995 and for passing appropriate orders, as per law, after hearing all the parties concerned, within a period of two months from the date of receipt of this order. Till such time, the decree passed in O.S.No.71 of 1981 shall not be given effect to against appellant-defendant No.46. No order as to costs. ______________ C.V.RAMULU, J Date: 22.7.2010 DA THE HON’BLE SRI JUSTICE C.V.RAMULU C.M.A.No.1427 of 2003 22.7.2010 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE C.V.RAMULU C.M.A.No.1427 of 2003 Date: 22nd July, 2010 Between: Bodla Jagadeesh .. Petitioner And Shiva Rani bai and others. .. Respondents