DIVAKER DUBEY Vs. KASHI NATH AND OTHERS

JUDGEMENT

(1.) This appeal is listed today for admission. Learned Counsel for the parties, however, are ready to have the appeal finally decided at this stage itself.

(2.) This is an appeal against an order rejecting an application under Order 9 Rule 13 C.P.C. It appears that the suit was being contested in the court below and 25-5-1984 was the date fixed. On that date the suit was dismissed for default of both the parties. On an application being moved by the plaintiff the suit was restored. Since the suit has been dismissed for default of both the parties admittedly it was not necessary to send notices to the defendant at that stage. Thereafter despite several efforts service could not be effected on the defendant-appellant after the suit had been restored. Ultimately on 19-9-1984 the court directed the plaintiff to take fresh steps and to inform defendants' counsel also about the next date fixed within ten days, fixing 29th Oct., 1984 for further orders. When this order was communicated to the counsel he refused to sign on the plea that the defendant was not in contact with him. The endorsement to this effect made on the order sheet bears the date 21-9-1984 On 14-11-1984 the court held this to be sufficient service on the defendant. After further proceedings the suit was decreed ex-parte on 17-4-1985.

(3.) On 30-5-1986 the defendant applied for recall of this order on the ground that he had no knowledge of any date after the dismissal of the suit on 25-5-1984. Even his counsel had never informed him about any date fixed in the suit. When he had come to the court in connection with some other case then he learned about the ex-parte decree where upon this application was moved.