(1.) A title suit no. 32 of 1994 had been filed by the petitioner -plaintiff. He sought a declaration on his title over the suit land referred to in Schedule 1 to the plaint. Other ancillary reliefs also have been sought in the suit. The suit proceeded exparte. The defendants did not file their written statement. The suit was decreed exparte and the execution proceedings began being Execution Case no. 1 of 1999. In the year 2000 the detendant 1(a) filed a miscellaneous case under Order 9 rule 13 of the Civil Procedure Code that there had been an exparte decree. His main defence was that the suit had proceeded exparte as he had no knowledge of it and he had not been served notice as had been issued in the suit proceeding.
(2.) THE issue plainly is whether, in fact, the defendants were without notice in the suit proceeding and had not been issued notice or they had knowledge of the suit proceeding or had deliberately kept away so as to permit a stage of exparte proceeding and thereafter an exparte decree. If it is the first circumstance then the defendants made out a prima facie case to have the matter adjudicated on merits. If it is the second circumstance then the defendants can not take advantage in a manoeuvering state of affairs to delay the proceeding in the suit.
(3.) ON record the order dated 30.11.1998 of learned Sub -Judge -II, Bagha in Title Suit No. 32 if 1994; Basanti Devi V/s. Gaina Sah and others, is a finding of facts on the state of affairs which reflects on the situation which goes to the root of the matter. Having been satisfied from the record the learned sub -judge observed that the defendants 1 and 1(a) not excluded entered the suit proceeding during its pendency and in which chose not to file a defence against the plaint case. This then ends the issue whether the defendants were without notice. At every given time the defendants had notice of the suit proceeding but chose not to file their written statement. This clearly implied that they had intended to drag the litigation. The record is so certified.