HARI NANDAN RAI Vs. MOHAN RAI

JUDGEMENT

(1.) This is an application by the plaintiff in a suit for specific performance of a contract for sale. The suit was decreed ex parte oa 24.6.1976 in title suit No. 66 of 1975 by Munsif West, Muzaffarpur, in the following circumstances.

(2.) After the suit was filed the defendants seem to have appeared and filed vafcalatnama. On 4.2.1976 and 1.3.1976 certain petitions were filed on behalf of the defendants for time. The case was adjourned to 1.4.1976. On 1.4.1976 the defendants did not appear or take any step. The learned Munsif fixed 10.4.1976 for ex parte hearing of the suit. Ultimately the suit was taken up exparte and was decreed on 14.6.1976, as stated above. The defendants thereafter filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the exparte decree dated 14.6.1976 afore-mentioned. The learned Munsif rejected their application under Order 9, Rule 13 of the Code of Civil Procedure. The defendants thereafter filed an appeal which was heard by the First Additional District Judge, Muzaffarpur, who by his judgment dated 26.9.1979 set aside the ex parte decree passed by the learned Munsif and ordered that the original suit be restored to its file for hearing according to law. It is against this judgment of the learned Additional District Judge that the plaintiff has come to this Court in civil revision.

(3.) Mr. Jagdish Pandey, learned Counsel appearing on behalf of the petitioner, submitted that the learned Additional District Judge has taken a completely wrong view of law in finding that the suit could not be posted for exparte hearing on 1.6.1976 or thereafter as the defendants had already appeared in the suit. It is not possible to accept this submission of the learned Counsel.