PARSHURAM PATHAK Vs. SHIVKUMARI KUER

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 19.8.1999 passed by Sub -Judge, 1st, Rohtas at Sasaram in Misc. case No. 57 of 1993 whereby the prayer made under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure of the Opposite parties had been allowed and the exparte decree passed on 31.5.1998 in Title Suit No. 268 of 1982 had been set aside and suit restored to file.

(2.) THE above mentioned Title suit was filed by the petitioner against the father of the Opposite parties. During the pendency of the suit the father of the Opposite parties died and in his place his legal representatives the Opposite parties and a daughter Ramdulari Devi were substituted. According to the Opposite parties neither any notice nor summons were served on their predecessors or on substitution to the Opposite parties either through ordinary process or registered cover. There was no daughter of the original defendant Lakshman Lal in the name and style of Ramdulari Devi rather one of his daughters was Ram Kueri Devi who died prior to her father Lakshman Lal but her husband Mahendra Lal is still living. According to the Opposite parties they came to know of the exparte decree and the execution thereof from one Nand Kishore Singh a Tayeed of the Court and then after taking all informations through information slip filed the petition under Order 9 Rule 13 of the Code of Civil Procedure which was registered as Misc. case No. 57 of 1993. On three grounds the exparte decree was challenged -(i) There was no service of summons either through ordinary process or through registered post (ii) There was no substituted service and the gazette publication did never reach the interior village Garaiya where the Opposite parties live (iii) The exparte decree was passed against a dead person. The petition as hotly contested by the petitioner. His contention was that in the original suit was filed summons were served on Lakshman Lai but on refusal service was made by hanging. Registered summons were also accepted as served on refusal. There was also gazette notification against the original defendant. On his death the heirs had also been served with notice similarly and that the Opposite parties had got knowledge of the suit long back and they were practically watching the proceeding and when delivery of possession was being issued the petition for restoration of the suit was filed. Regarding the death of the daughter and the decree being passed against a dead person no denial has been made in the objection filed.

(3.) DURING the course of argument before this Court learned counsel for the Opposite parties has contended that this revision petition is not maintainable as the petitioner has already accepted the cost of Rs. 500/ - and that the suit has been revised and it has reached advance stage of trial when settlement of issues have already been made. Regarding this submission learned counsel for the petitioner has submitted that he has no knowledge about such things and when by filing affidavits such statement has not been made the same cannot be relied on.