C K THOMAS Vs. BHAVANI AMMA

JUDGEMENT

(1.) A few points of some interest and importance have been raised in this revision petition.

(2.) The plaintiff sued for a declaration of his right to 5 out of 24 shares in the plaint properties and for partition and separate possession of such share. The other sharers are the defendants in the suit. All but one remained ex parte in the suit and a preliminary decree was passed after considering the contentions raised by the 3rd defendant. It has been mentioned at the bar that the preliminary decree was challenged in appeal and in second appeal and eventually confirmed. In the meanwhile, a final decree appears to have been passed, and the 2nd defendant, claiming to be aggrieved by the final decree, applied for an order under O.9 R.13 CPC. to set it aside. He alleged that no notice had been served on him of the application for passing the final decree and ,that he came to know about the specific final decree that had been passed only on 2 8 1966 i. e. the day previous to his application under O.9 R.13 CPC. His application was dismissed by both the Courts below and so he has come up in revision.

(3.) Admittedly, notice was not issued on the application for passing the final decree and so we have to take it that no notice was served on the 2nd defendant in the final decree proceedings although he had been served with summons when the suit was instituted and had chosen to remain ex parte allowing a preliminary decree to be passed. Obviously, he cannot be heard to challenge any thing that has been decided in the preliminary decree and, indeed, the revision petitioner agrees that he is bound by the preliminary decree. His grievance is that he should have been given notice when an application for the passing of a final decree was made and that not having been done the decree passed thereon was violative of the rules of natural justice and it must be deemed as if he had not been duly served with summons for purposes of Art.123 (old Art.164) of the Limitation Act.