RAMESH CHAND PATHAK Vs. MANIKCHAND JAIN AND ORS.

JUDGEMENT

(1.) THIS order shall govern the disposal of Misc. Petition No. 436/91 also, the two petitions arising out of the same judicial proceedings though filed by different sets of Defendants.

(2.) AS we are not called upon to enter into the questions of facts and also not to resolve any issue touching the rights of the parties in the original proceeding but are required to adjudicate upon legal issues only relating to the maintainability of as application under Order 9. Rule 13 Code of Civil Procedure as also of an appeal, the facts relevant to those questions only are being noticed hereinafter.

(3.) THE Plaintiff/Respondents No. 1 and 2 filed a civil suit seeking declaration of title and recovery of possession over a piece of land. There were 7 Defendants in all. The suit which was originally pending in the Court of 3rd Civil Judge Class -2, Gwalior registered as C.O.S. No. 103A/79, came to be transferred to the Court of 2nd Civil judge Class -1, Gwalior renumbered as Civil Original Suit No. 84A/85 under orders of the District Judge passed on the administrative side on 25 -10 -85. There is a dispute on the point as to whether the Defendants were noticed to appear before the transferee Court or not and whether they appeared thereat or not but that aspect need not detain us any longer. The fact remains that on 17 -4 -86, the transferee Court passed a decree ex parte against all the Defendants sustaining the claim of the Plaintiff