MAKUNDA PRUSTY Vs. SASHIMANI SAHOO

JUDGEMENT

(1.) This matter is taken up through hybrid mode.

(2.) Order dtd. 25/4/2012 (Annexure-2) passed by learned 2nd Additional District Judge, Puri in F.A.O. No.18/3 of 2010/09 is under challenge in this writ petition, whereby order dtd. 17/12/2008 passed by learned Civil Judge (Senior Division), Nimapara in C.M.A. No.45 of 2007 filed under Order IX Rule 13 CPC, has been confirmed.

(3.) Mr. Mohapatra, learned counsel submits that the Petitioner was Defendant No.1 in T.S. No.87 of 1994 filed by the Opposite Parties for partition. No notice of the suit was ever served on the Petitioner at any point of time. But practising fraud on Court, the Opposite Parties managed to get the notice on the Petitioner sufficient. A fraud was played on Court by filing Vakalatnama on behalf of the Petitioner forging his signature. It is his submission that the Petitioner had no knowledge about the ex parte decree of partition. Only when the process server went to the spot on 23/4/2003 to take delivery of possession in Execution Case No.51/4 of 2000/1999, the Petitioner came to know about the ex parte decree. As such, an application under Order IX Rule 13 CPC was filed in CMA No.45 of 2007 to set aside the ex parte decree. Learned trial Court without appreciating the matter in its proper perspective, dismissed the application on 17/12/2008. Assailing the same, the Petitioner preferred the aforesaid appeal, which has also been dismissed. Hence, this writ petition has been filed.