SAMBHUNATH DAS Vs. SIRISH CH MOHAPATRA

JUDGEMENT

(1.) This revision is directed against the order passed by the learned District Judge, Balasore confirming the order passed by the learned Subordinate Judge, Balasore refusing to set aside the ex parte final decree passed in O. S. 122 of 1970.

(2.) The petitioner was defendant No. 1 and the opposite party was the plaintiff in the suit for partition (O. S. No. 122 of 1970). The preliminary decree in the suit was passed on 21-12-1973 declaring half share of each of the aforesaid parties in respect of the subject-matter of partition. According to the petitioner, he served as a Porter in Calcutta and when he came home on 24-9-1978, he was informed by his wife that on 18-9-1978 a process server of the civil Court had served a notice by affixture. On going through the notice the petitioner came to know that he was noticed to appear in the Court of the Subordinate Judge, Balasore in Execution Case No. 14 of 1978. He came and met his Advocate at Balasore on 15-8-1978 and showed the execution notice to him. The advocate inspected the execution record on 28-9-1978 and informed the petitioner that in O. S. No. 122 of 1970 a final decree was passed on 18-11-1976 and the said decree was under execution in Execution Case No. 14 of 1978. It is stated by the petitioner that in the final decree proceeding notice either through process server or by registered post was not served on him and there was fraudulent suppression of service thereof. He also did not receive any notice from any civil Court commissioner who might have been deputed to effect partition. Otherwise he had absolutely no knowledge of the final decree proceeding. It was, therefore, not possible on his part to appear and participate in the said proceeding. He would suffer irreparable loss if the final decree passed ex parte was not set aside. He, therefore, presented a petition under O.9, R.13 of the Civil P.C. (hereinafter referred to as the 'Code') (registered as Misc. Case No. 180 of 1978) for setting aside the ex parte final decree passed on 8-11-1977 in O. S. 122 of 1970 on the ground of fraudulent suppression of service of notice on him.

(3.) Opposite party categorically denied all the averments made in the petition under O.9, R.13 of the Code and inter alia contended that there was service of notice of the final decree proceeding on the petitioner according to law. He was otherwise aware of the same. He did not deliberately appear in the said proceeding. Therefore, the ex parte final decree passed according to law was not liable to be set aside.