SAHEB JAN MIAN Vs. NATHUNI SINGH

JUDGEMENT

(1.) This is an application by the defendants whose application for setting aside an ex parte decree has been dismissed on the ground that having preferred an appeal against the said decree, they had no right to apply under Rule 13 of Order 9 of the Code of Civil Procedure (hereinafter referred to as 'the Code') in view of the amendment introduced in Rule 13 in 1976 (Act 104 of 1976).

(2.) Some facts may be briefly stated. Title Suit No. 341 of 1974 was filed by opposite parties Nos. 1 and 2 against the petitioners in the Court of the Subordinate Judge, Sasaram, for certain declaration regarding the entries made in the revisional survey records. This suit was decreed ex parte on 20-7-1977. The petitioners filed a miscellaneous case under Order 9, Rule 13 of the Code for setting aside the ex parte decree, inter alia, on the ground that no summons were served on them. They also preferred a title appeal against the ex parte decree before the District Judge, Bhojpur, being Title Appeal No. 153 of 1977. Unfortunately, for the petitioners, the said title appeal stood dismissed on 31-1-1978 for non-compliance of the Court's order for filing certain processes etc. for issue of appeal notices on the respondents. In the restoration matter, one of the points agitated by the plaintiffs was that in view of the Explanation added by the 1976 amendment, as mentioned above, the application under Rule 13 was not maintainable. The stand of the petitioner, however, was that inasmuch as the appeal was dismissed for default without any adjudication, the rigour of the Explanation would not be attracted. The learned Subordinate Judge, however, overruled the plea of the petitioners and dismissed the miscellaneous case on the ground that it was not maintainable. The view of the learned Subordinate Judge has been affirmed by the lower appellate Court in the appeal preferred by the petitioners.

(3.) Mr. Rama Raman appearing in support of this application, advanced the same contention as was before the trial Court already indicated above.