NISHAMANI BEWA Vs. NARAYAN SETHI

JUDGEMENT

(1.) THIS appeal under Order 43 Rule 1 -(d) CPC has been preferred against the order refusing to set aside the decree passed in T.S. No. 520 of 1987 by the learned 2nd Additional Civil Judge, (Senior Division), Cuttack.

(2.) T .S. No. 520 of 1987 was filed by the predecessor -in -interest of the respondents for partition of the suit property. The said plaintiff having expired during the pendency of the suit, the present respondents were substituted as plaintiffs. The said suit was filed against the predecessor -in -interest of the appellants 1 to 4 and the predecessor -in -interest of the appellants 5 and 6 who have also been substituted during the pendency of the suit.

(3.) IT was contended in the objection filed by the respondents, to the application under Order 9 Rule 13 CPC and the application under Section 5 of the Limitation Act that the appellants had knowledge about the proceeding of the suit inasmuch as they having entered appearance and filed their written statement, the suit should be held to have been decreed on contest and, therefore, the application under Order 9 Rule -13 CPC is not maintainable. It was further contended that the delay in filing the restoration petition has not been explained by the appellants.