SULTANUL ZAMAN Vs. HAMID UDDIN

JUDGEMENT

(1.) This civil revision filed by the defendant arises out of the following circumstances.

(2.) The plaintiffs brought a suit for partition of certain agricultural plots including a grove. The suit was decreed by the Munsif. A preliminary decree was passed and then the record was sent to the revenue court for preparation of the partition scheme. Thereafter an appeal was preferred by the defendant and the appellate Court modified the preliminary decree. On receipt of the partition scheme from the revenue Court the learned Munsif passed another order sending back the papers to the Revenue Court for the preparation of a fresh partition scheme according to the amended decree. A fresh partition scheme was received from the Revenue Court but no notice of it was given to the defendant or his counsel, and the learned Munsif passed a final decree in terms of the fresh partition scheme on 13-8-1957.

(3.) An application was made by the defendant under Order 9, Rule 13, C.P.C. for the setting aside of the final ex parte decree, and the main contention was that tne final decree having been prepared without notice should be set aside. This application was made on 20-ll-1957, that is about three months after the final decree, and the defendant claimed knowledge of the decree from the 27th Oct. 1957 when the Amin went to the spot to give delivery of possession. The application was dismissed on the ground that the defendant having contested the case there was no sufficient ground for his absence. The lower appellate Court also dismissed the appeal on the ground that a final decree being a continuation of the suit and the defendant having been duly served and having offered contest, it was his duty to find out what was happening in the case. The application was therefore dismissed on the ground of limitation. It is against these findings that the present revision has been filed.