RAMANATH MISHRA Vs. GANESWAR MISHRA

JUDGEMENT

(1.) One of the defendants in original suit No. 168 of 1976-I of the Court of the Munsif, Puri has filed this application under S.115 of the Civil P. C. being aggrieved by the order dated 8-12-1981 rejecting his application to restore Misc. Case No. 10 of 1981, under O.9, R.13, Civil P. C. The gist of the relevant facts leading to this proceeding may be stated thus: The opposite party No. 1 filed the above mentioned suit against the petitioner and opposite party Nos. 2 and 3 for declaration of title and for recovery of possession in respect of Ac.0.06 decimals of land in plot No. 3521 under Khata No. 941 of village Sripurusottampur in the district of Puri. The plaintiff-opposite party No. 1 based his title to the disputed land on the registered sale deed dated 8-4-1972 said to have been executed by opposite party No. 3, Brahmananda Misra, son of Kasinath Misra for a consideration of Rs. 100/-. The petitioner-defendant No. 1, while denying the allegations made by the opposite party No. 1 took the stand that opposite party No. 3 is not the son of Kasinath Misra, but he is the son of one Binayak Misra. Kasinath Misra, the father of the petitioner, had a son named Brahmananda Misra who died long since. The petitioner pleaded that Brahmananda Misra said to be the executant of sale deed in favour of the opposite party No. 1 and had no right, title and interest in the suit property.

(2.) The suit was posted for hearing to 9-1-1981. On that date, the petitioner, the main contesting defendant, was suffering from typhoid and could not attend the Court. The suit was decreed ex parte on 12-1-1981. The petitioner filed an application under O.9, R.13, Civil P. C. for setting aside the ex parte decree which was registered as Misc. Case No. 10 of 1981. After hearing both the parties, the Court below by his order dated 10-7-1981 set aside the ex parte decree subject to payment of Rs.100/- as cost by 15-7-1981. The operative portion of the order reads as follows :-

(3.) The petitioner filed application under S. 151, Civil P. C. (Misc. Case No. 61 of 1981) giving rise to the present proceeding narrating the facts stated in the foregoing paragraphs. The plaintiff-opposite party No. 1, as the impugned order reveals, did not file any counter disputing the facts mentioned in the petition and conceded that the facts mentioned in the petition might be true. He contested the proceeding solely on the ground that the application under S.151, Civil P.C. is not maintainable. A perusal of the impugned order shows that the Court below has rejected the application on the ground that S.151, Civil P.C. has no application to the case since under O.43, R.1(d), Civil P. C. the petitioner has a right of appeal against the order rejecting his application under O. IX, R. XIII, Civil P.C. to set aside the ex parte decree. The Court has further observed that it has indeed no jurisdiction to extend time on 15-7-1981. This observation of the Court below is not very relevant for the present purpose since the order dated 15-7-1981 extending time for payment of cost till 28th July, 1981 has not been challenged by any party.