SANTOSH KUMAR PADHIARI Vs. NIYATI AND OTHERS

JUDGEMENT

(1.) In this appeal the challenge is to the final decree passed by the learned Subordinate Civil Judge (Sr. Division), Baripada in Title Suit No. 125 of 1991 which has been confirmed by the learned District Judge, Mayurbhanj in Title Appeal No. 30 of the 1998 carried at the instance of this appellant.

(2.) The respondent No. 1 as the plaintiff filed the suit for partition of the house and homestead of the joint family property described in the schedule-B of the plaint. Admittedly, one Ghana Padhiari is the common ancestor of the parties. He was survived by his two sons and three daughters. Plaintiff is the widow and successor of one of the son's namely, Sukanta. Whereas the present appellant who is the defendant No. 1 is the other son and rest of the defendants are the daughters. The appellant having received summon, entered appearance therein and prayed for time for filing written statement. Another defendant had also appeared and others were set ex parte of their non-response despite of notice. Several adjournments were given by the appellant for filing the written statement and ultimately on 23.6.1992, the prayer was rejected and he was set ex parte. The state of affairs continued as it is and only on 9.8.1994 the suit was heard ex parte followed by order on 20.8.1994. Therefore, the appellant along with one of her sister filed a petition under Order 9, Rule 13 of the Code of Civil Procedure which gave rise to Misc. Case No. 67 of 1994 for setting aside ex parte decree. But then they left the matter as it is without even rectifying the defects pointed out by the office. So, it had to be finally dismissed for default on 25.10.1994. Thus, the ex parte preliminary decree stood un-annulled and held the field with full legal force.

(3.) The appeal has been admitted on the following substantial questions of Law :