NAGINA DEVI Vs. BRIJNANDAN PD SINHA

JUDGEMENT

(1.) Defendants Nos. 6 to 10 of partition suit No. 26 of 1953 of the Court of Subordinate Judge I, Gaya, filed an application in the court below under Order 9, Rule 13 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for setting aside ex parte final decree in that suit. Their application has been dismissed and accordingly they have preferred an appeal as well as an application in revision. This has been done on account of some doubt as to the maintainability of the appeal against the order. The question whether the present order rejecting the application under Order 9, Rule 13 of the Code is appealable under Order 43, Rule 1 (d) or not depends on decision of the question whether Order 9, Rule 13 is applicable or not to proceedings for final decree in a partition suit. In Surendra Kumar Singh v. Mukund Lal Sahu, AIR 1949 Pat 68 it was held that Order 9, Rule 13 of the Code could not apply to a proceeding for final decree, as no notice was necessary to be given to the defendant about the plaintiff's application for making a preliminary decree final. This decision of a learned single Judge of this Court was based on an unreported Bench decision in Birendra Prasad Sukul v. Srimati Kiran Bala Mitter, Misc. Appeal No. 23 of 1941, disposed of on 2-11-1942 (Pat). Both these decisions were given in relation to a final decree in a mortgage suit and not in a suit for partition. In Mangal Singh v. Naga Singh, (1962 BLJR 695), Choudhary, J. distinguished the decision in Surendra Kumar Singh's case, AIR 1949 Pat 68 and made the following observations:

(2.) Before taking up the appeal for consideration on merits, it is necessary to state some facts. In the partition suit which was filed by Smt. Shyama Devi the appellants were the main contestants. They had entered appearance in that suit through Shri Kedar Nath and Shri Akhauri Krishna Prasad, Pleaders. After the preliminary decree was passed in the suit on 31st of August, 1956, they preferred an appeal to this Court against the said decree. This was numbered as First Appeal No. 30 of 1957 and was dismissed. The case of the appellants is that they were always under the belief that on an application being filed by the plaintiffs or defendants 1 to 3, who were supporting the plaintiffs, for appointment of a Commissioner for partition by metes and bounds, they (the appellants) would get a notice from the court or at least from the Commissioner. They expected that, at any rate, the Commissioner would inform their lawyers. Neither they were given any notice by the court nor by the Commissioner of the proceedings for preparation of final decree, nor the Commissioner appointed in the suit for the purpose of effecting partition by metes and bounds informed their lawyers. They came to know of the ex parte final decree only when they received a postcard dated 13th of April, 1970 from Shri Hira Lal, Advocate informing that he would deliver possession of property in village Keyal after demarcation on 20th of April, 1970. The postcard was delivered to them on 18th of April, 1970. They made inspection of the records on 20th of April, 1970 and filed the application on 2nd of May, 1970.

(3.) Opposite Party Nos. 1 and 2 in their rejoinder stated that the application of the appellants was not maintainable. It was filed just to harass them and that the appellants had knowledge of all the proceeding for preparation of the final decree. Their case further was that, at any rate, the appellants must be deemed to have come to know of the final decree on 11th of March, 1970 when Shri Hira Lal, Advocate Commissioner, inspected the house at Gaya for demarcating it for delivery of possession and the application was barred by limitation even from that date.