NICHHATTAR SINGH Vs. BABU KHAN

JUDGEMENT

(1.) By judgment dated 2nd August, 1971 the Execution Second Appeal filed by Nachhattar Singh, Milkha Singh and Darbara Singh was allowed and the orders of the Courts below confirming the sale were set aside. The application of the auction-purchaser and the decree-holder were dismissed. The appeal was only contested by respondents 3 and 4 and it was decided ex parte against Babu Khan respondent 1 and Mst. Basso widow of Rukan Din respondent 2. Babu Khan has now filed an application under order 41, rule 21, read with Section 151 of the Civil Procedure Code through which it is prayed that the ex parte judgment be set aside and the appeal be re-heard. It is further prayed that after re-hearing, it be held that the appeal had abated and could not proceed without bringing the names of the legal representatives of Darbara Singh on the record.

(2.) Notice of this application was issued and Nachhattar Singh has appeared to contest this application. Though it is admitted on behalf of Nachhattar Singh that Darbara Singh had died on 29th November, 1970 but it is stated that his real nephew and legal heirs were already on the record as co-apprellants and that the appeal could not abate. It is further stated that application is time barred and Babu Khan had been served and had not appeared because of gross negligence on his part. The existence of a reasonable cause for the restoration of the appeal was challenged.

(3.) On behalf of the petitioner, two arguments have been raised before me. It is firstly pointed out that the legal representatives of Darbara Singh appellant not having been brought on the record when the appeal was heard, the decree was a nullity and be so declared by re-hearing the appeal. The second argument advanced is that there had been no due service of the notice on Babu Khan petitioner and the ex parte order was likely to be set aside on that ground. I proceed to examine both these arguments.