ARUN KUMAR Vs. NAND KISHORE RAI

JUDGEMENT

(1.) Heard the learned counsel for the petitioner and the learned counsel appearing for some of the opposite parties.

(2.) The plaintiffs are the petitioners in this revision application and are aggrieved by the order passed by the learned court below setting aside the ex parte decree passed in T.S.No. 306/1983.

(3.) From the materials on the record as well as the submissions on behalf of the parties, it is manifest that a suit for partition was filed by the present petitioners as plaintiffs. In the said suit besides other defendants, the defendant no. 10 Deonandan Rai was also impleaded as a party. The suit was ultimately decreed ex parte against defendant nos. 1,2,10,12 to 15 and 21 and on contest against the remaining defendants. Later on the petition was filed by the present opposite parties under Order 9, Rule 13 C.P.C praying for setting aside the ex parte decree asserting that they were the heirs and legal representatives of the defendant no. 10 Deonandan Rai who was dead prior to the filing of the suit and the decree had been passed ex parte against him. The present petitioners contested the claim of the applicants-opposite party nos. 1 to 5. The learned court below by the impugned order has come to the finding that the defendant no. 10 Deonandan Rai was dead on the date when the suit was filed and consequently set aside the ex parte decree passed in the suit restoring the same to its original file.