PARMARTH PRAKASH Vs. UNION OF INDIA

JUDGEMENT

(1.) This revision is directed against the order dated 12.10.1983 passed in a proceeding under Order IX, Rule 13, C.P.C. which arose out of Suit No. 200 of 1979.

(2.) The suit was filed for declaration that family arrangement entered into between the co-owners of the property is to stand, so long the partition suit is not filed and there is no decree for partition. The suit was contested by the defendant No. 3 while the defendant Nos. 5, 7 and 8 did not contest the suit and suit was decreed partly. The judgment and decree was passed on merits on 24.1.1993. Thereafter within time, the defendant Nos. 5, 7 and 8 filed an application under Order IX, Rule 13, C.P.C. for setting aside the judgment and order on the ground that no notice was served upon them and behind their back, the decree was obtained by the plaintiff which be set aside. It was contested by the plaintiff opposite parties.

(3.) In Order IX, Rule 13, C.P.C., it has been mentioned as under : "In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside ; and if he satisfies the Court that the summons was not duty (sic duly) served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment Into Court or otherwise as it thinks fit. and shall appoint a day for proceeding with the suit : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also : Provided farther that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim."