CHANDGI Vs. GAJ RAJ AND OTHERS

JUDGEMENT

(1.) The revision is against the concurrent orders of dismissal of an application filed by the petitioner to set aside an exparte preliminary decree. The suit had been instituted by the plaintiffs to sue the defendants No.1 to 10 in a representative capacity as representatives of the defendants No. 20 to 92. Defendant Nos. 11 to 19 were referred to as proforma defendants. In the application filed for permission to sue in a representative capacity, the Court by its order dated 9.11.1979 observed as follows:-

(2.) At the next hearing on 11.12.1979 the Court has set ex-parte some of the defendants and has taken on record reply to the application filed under Order 1 Rule 8. At the subsequent hearing on 23.1.1980 the Court had issued summons to respondent Nos. 7 and 9 through Munadi. On 26.8.1980, the Court has observed that service through Munadi had been effected but none was present and they were also set ex-parte. On the next date of hearing on 6.10.1980 the Court has allowed for ex-parte evidence of the plaintiff and subsequently it has passed a preliminary decree.

(3.) It appears that the petitioners who had been cited as defendant Nos. 20 to 92 were at no point of time served either personally or any permission had been taken from the Court for publication by advertisement. After the preliminary decree the plaintiffs have also obtained a final decree for partition of their share and at that time the present petitioners have preferred an appeal against the final decree complaining that there had been no statutory compliance and that the decree will not bind them. The appellate court dismissed the appeal holding that since there was no appeal against the preliminary decree it had become final and there could be no challenge to the final decree. A second appeal to this Court has also failed but there had been an observation that the remedy of the petitioner would be only to apply for setting aside the ex-parte decree and not come by means of an appeal against the final decree. It was at that stage the present application for setting aside the ex-parte decree was passed that has resulted in the impugned orders.