HASHRTUN KHATUN Vs. SK AHESANULLAH

JUDGEMENT

(1.) The present petitioners (hereinafter referred to as 'the plaintiffs'), being the daughters of Sk. Alimulla filed Title Suit No. 85 of 1980 before the court of the Subordinate Judge, Balasore, presently designated as Civil Judge (Senior Division), for partition of the suit properties against their brothers and sisters. From the records it appears that the suit has under-gone a chequered career. Some of the defendants, including defendant No. 1, entered appearance and since they did not contest the suit, it was decreed ex-parte on 26-4-84. Defendants 1 and 2 filed a petition to set aside the ex-parte decree, but since by that time judgment had not been 'passed, the petition was dismissed being not maintainable. It was, however, observed that defendants may file such petition after the decree was passed. Ultimately the suit was decreed and preliminary decree was drawn up on 28-4-84. In order to make the decree final plaintiffs approached the Court on 3-8-84. Defendant No. 1 was served with the notice in the final decree proceeding and as he did not enter appearance was set ex-pa rte. During pendency of the final decree proceeding the plaintiffs filed a petition under Order 47, Rule 1, read with Section 151, CPC for review of the preliminary decree which was registered as Misc. Case No. 174 of 1987. Again notices were served upon the defendants inviting objection to the prayer for review. As it appears from the order dated 9-9-87, defendant No. 1 on receipt of notice entered appearance on 19-2-88 and filed objection and the learned court below upon hearing the parties refused the plaintiffs' prayer for review and consequently dismissed the Misc. Case. Thereupon plaintiffs and defendants 4 to 6 entered into a compromise and filed a petition to that effect on 1-2-90. Before the compromise was recorded, defendant No. 1 filed a petition on 6-7-90 under Section 151, CPC to set aside the decree and to drop the final decree proceeding since according to him, the properties had already been partitioned by a compromise decree in an earlier partition suit. This was, however, objected to by the plaintiffs. Learned court below upon hearing the parties, rejected the petition of defendant No. 1 by its order dated 18-12-90. Being dissatisfied with the said order, he approached this Court in Civil Revision No. 253 of 1991. While dismissing the revision, the Court observed thus .

(2.) After dismissal of the revision, defendant No. 1 moved the Trial Court under Order 9, Rule 13, CPC to set aside the ex-parte decree passed in the suit. The stand taken by him was that since he was suffering from various ailments and was bed-ridden he had entrusted the case to his brother, defendant No. 2 to look after on his behalf. His brother, however, consived with the plaintiffs and did not take steps, as a consequence the suit was decreed ex-parte. Since he had no laches or negligence in taking steps in the suit, the ex-parte decree passed against him should be set aside and the suit should be restored to file. Along with the petition he filed another petition under sections 5 and 14 of the Limitation Act to condone the delay occasioned in approaching the Court in time. Resisting the prayer of defendant No. 1 mainly on the ground of limitation, the plaintiffs contended that the suit having been decreed ex-parte to the knowledge of the former it cannot be set aside after eight years. Defendant No. 1 in support of his case examined himself and reiterated what he had pleaded in the petition. On the other hand, the plaintiffs in support of their case that passing of the decree was to the knowledge of defendant No. 1, examined one Advocate who was appointed as a Commissioner, to show that on a particular date of taking up the work assigned to him by the court, defendant No. 1 was present whose signature was obtained in the order-sheet marked Ext. A. Learned Trial Court upon consideration of the facts and circumstances and the evidence adduced by the parties, came to hold that defendant No. 1 had the knowledge of the ex-parte decree passed in the suit and he having not taken steps to set aside the same within prescribed period and the delay in approaching the court having not been properly explained, the ex-parte decree cannot be set aside. Having thus held, it rejected the prayer of defendant No. 1 and dismissed the Misc. Case. On appeal by defendant No. 1 the learned Additional District Judge reversed the order of the learned Court below and it is against that order, the present revision is filed.

(3.) In course of hearing of the revision, defendant No. 1 could not place anything on record that the suit properties are no more joint, the same having been partitioned between the parties in an earlier suit. Therefore, the sole question for consideration is whether the ex-parte decree passed in favour of the plaintiffs could be set aside and the suit be reopened for hearing afresh as prayed for by defendant No. 1. It may be noted, defendant No.1 had entered appearance in the suit, but failed to contest the same, as a result it was decreed ex-parte on 26-4-1984. In order to make the decree final the plaintiffs moved the court below whereupon all the parties including defendant No. 1 were noticed. As would appear from the order dated 13.9.1984, defendant No. 1 was personally served with the notice. So his knowledge about passing of the ex-parte decree started from the date of receipt of the notice. He should have approached the court below within the prescribed period of limitation from the date of receipt of the notice to set aside the ex-parte decree. But he did not do so. He appeared in the final decree proceeding and challenged its maintainability urging that the properties are no more joint, the same having been divided by metes and bounds in an earlier partition suit. The court below rejected his prayer, whereafter he moved this Court in a revision which also did not yield the desired result. From the aforesaid admitted facts, it is discernible that defendant No. 1 had the knowledge of the decree that was passed against him, but he failed to take steps within the prescribed period of limitation to set aside the same. The plea taken by him that only after inspection of the record through his counsel on 19-2-1998 he came to know that such a decree had been passed against him, cannot be accepted at all. The learned appellate court while reversing the order of the court below should have ascertained from the materials on record as to the date of knowledge of passing of decree of defendant No/1, reason being that as provided under Order 9, Rule 13, CPC an ex-parte decree can be set aside at the instance of the defendant on two grounds, one of the grounds being that he was prevented by sufficient cause from appearing in the suit when it was called on for hearing. Had the learned Additional District Judge on re-appreciation of the evidence came to a finding that the defendant No. 1 was not aware of the passing of the ex-parte decree, this Court sitting in revision would have been slow to interfere with his order. Without doing so, he in slipshod manner came to hold that defendant No. 1 soon after receipt of the notice in the final decree proceeding took steps to set aside the decree. This observation, in my opinion, is against the weight of the materials on record. There was long delay of eight years in approaching the trial court which remained unexplained satisfactorily and therefore, the ex- parte decree passed in the suit cannot be set aside.