CHAMAN Vs. IST ADDITIONAL CIVIL JUDGE

JUDGEMENT

(1.) Heard Sri Ajay Kumar Singh, learned counsel for the petitioner, Sri Piyush Shukla, learned standing counsel for the respondent Nos. 1 and 2 and Sri A.C. Tripathi, learned counsel for the respondent Nos. 3 and 4.

(2.) This writ petition is directed against the order dated 13th August, 1984 in Case No. 218 of 1973, Baya v. Kanhaiya, passed by the IXth Additional Munsif, Varanasi, as also against the order dated 24th January, 1985, passed by the 1st Additional Civil Judge, Varanasi in Misc. Appeal No. 381 of 1984, Lakhan and Ors. v. Baya. and Ors., whereby the learned Additional Civil Judge has dismissed the said appeal and upheld the order dated 13th August, 1984 passed by the learned Additional Munsif.

(3.) Original Suit No. 218 of 1973 was filed by respondent No. 3, namely, Baya for partition of one third share in respect of the house being property No. D-62-1, situate in Mohalla Sonia City, Varanasi, The said suit was decreed ex parte under the judgment and order dated 6th July, 1982. In the said suit, the father of the petitioners Sri Kanhaiya was one of the defendants. During the said proceedings, Sri Kanhaiya expired, the plaintiffs-petitioners, who were legal heirs filed an application for recall of the ex parte judgment and decree, which was number as Misc. Case No. 59 of 1983. The said application for recall of the ex parte order was filed only after five days from the date of the ex pane decree on 11th July, 1983. The application so filed, was allowed and the suit was restored to its original number after recall of the ex parte decree.