MAHENDRA THAKUR Vs. AKHILESH TIWARI

JUDGEMENT

(1.) HEARD the parties. In Partition Suit No.111 of 1976, Sukhdeo Thakur was defendant no.1. Inspite of service of summons of the suit he did not appear and died on 2.12.1977. His name was expunged and on 10.3.1978 his widow and three sons were substituted in his place. His substituted heirs also did not appear in the suit and on 18.8.1978 suit was decreed ex parte. Misc. Case No. 51 of 1978 filed under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said ex parte preliminary decree was dismissed on 30.8.1979. M.A.No.236 of 1979 filed in this Court was also dismissed on 4.12.1997 holding that summons of the suit was duly served on those defendants and they had full knowledge of the suit as well as preliminary decree passed therein.

(2.) OPPOSITE parties 1 and 2 herein claim to be sons of deceased daughter (Ram Raj Devi) of late Sukhdeo Thakur who were not substituted. They filed Misc. Case No. 24 of 1995 for setting aside the aforesaid ex parte decree, which was al -lowed by impugned order dated 13.4.1999. Plaintiff has therefore filed the present revision application.

(3.) ON the other hand, Mr. Sidhesh -wari Prasad Singh, Senior counsel for op -posite party no.1 placed reliance on a decision of this Court in Mangal Singh and others vs. Naga Singh and others (1962 BLJR 695), wherein it was held that legal heirs of deceased defendant has right to make an application under Order 9 Rule 13 of the Code of Civil Pro -cedure for setting aside ex parte decree.