RAJENDRA PRASAD TIWARI Vs. KRISHNA KUMAR DIXIT

JUDGEMENT

(1.) -By this writ petition the petitioner is challenging the order dated 4.1.2003 passed in Misc. Case No.25 of 1999 and revisional order dated 21.9.2004.

(2.) The facts of the case, in brief, are that one Smt. Savitri Devi widow of late Ayodhya Prasad filed a suit no.259 of 1979 seeking partition of the house in question. During the pendency of the suit she died and on the basis of will which is stated to have been executed by Savitri Devi in favour of the respondent Krishna Kumar Dixit (now deceased), the said respondent got himself substituted in the said suit. The petitioner had filed written statement denying the claim of the respondent. In fact the suit was barred by limitation of more than 12 years. The suit was decreed ex parte vide order dated 19.12.1994 in default of appearance of the defendant/petitioner's counsel. On 13.1.1995 the defendant/petitioner filed an application under Order 9, Rule 13 Civil Procedure Code supported by an affidavit to recall the ex parte decree. This application was registered as Misc.Case No.8 of 1995, which was also dismissed in default on 5.1.1996 as the petitioner's counsel failed to appear on the date fixed. Thereafter, an application was filed on 25.1.1996 under Sec. 151 Civil Procedure Code being Misc. Case no.1 of 1996 for recalling of the order dated 5.1.1996 and to restore the original Misc. Case No.8 of 1995. This application was also dismissed in default for non-appearance of the petitioner's counsel on 13.2.1998 Thereafter, on 18.3.1999 when the petitioner came to know about rejection of application under Sec. 151 Civil Procedure Code he filed an application, which was registered as Misc.Case No.25 of 1999 for recall of the order dated 13.2.1998. This application was rejected by the impugned order dated 4.1.2003. Aggrieved the petitioner filed a Civil Revision which was dismissed by the impugned order dated 21.9.2004. Hence the present writ petition.

(3.) I have heard Sri P.C.Jain, learned counsel for the petitioner. None appears for the respondents. Sri Swapnil Kumar, learned counsel for the respondent states that the sole respondent has expired and his heirs have been substituted and brought on record on 12.7.2011 but he has no instructions from the said newly added respondents no.1/1 and 1/2. No other counsel has put in appearance for respondent nos.1/1 and 1/2.