DAYANIDHI BAIDYA Vs. KESHABA BAIDYA AND ANOTHER

JUDGEMENT

(1.) This appeal is by defendant no.1 against a confirming judgment.

(2.) The dispute lies in a narrow compass. It is not necessary to recount in detail the case of the parties. Suffice it to say that plaintiff-respondent no.1 instituted the suit for declaration that the defendants have no right, title, interest over the suit land and recovery of possession. The defendants filed written statement denying the assertions made in the plaint, but subsequently they were set ex parte. The suit was decreed ex parte. The defendants filed an application under Order 9 Rule 13 C.P.C. to set aside the ex parte judgment. The same having been dismissed, they filed appeal, which met the same fate. They filed revision, which was eventually dismissed. Thereafter they filed T.A.No.1 of 1995 under Section 96 C.P.C. before the learned Additional District Judge, Jeypore. Learned appellate court held that the appeal, having been filed by the defendants against the ex parte judgment and decree after exhausting remedy available under Order 9 Rule 13 C.P.C., is not maintainable. Held so, it dismissed the appeal.

(3.) The Second Appeal was admitted on the following substantial question of law: