DEEN DAYAL DUBEY Vs. BACHAN CHAUBEY

JUDGEMENT

(1.) PLAINTIFF -petitioner, aggrieved by the order dated 25.1.2006 passed by the Munsif, Bhabua in Miscellaneous Case No. 26 of 2000 setting aside an ex parte judgment and decree dated 16.8.2000 passed in Title Suit No. 304 of 1998, has preferred this application.

(2.) SHORN of unnecessary details, facts giving rise to the present application are that the plaintiff filed Title Suit No. 304 of 1998 for declaration of his title and recovery of possession over the land as detailed in Schedule A of the plaint. Defendants, including defendant No. 4 -Opposite Party, appeared in the suit on 29.1.1999. Suit was adjourned from one day to another including 2.03.2000. Defendants did not appear thereafter and by order dated 14.3.2000 debarred from filing the written statement. Suit was ultimately decreed by an ex parte judgment and decree dated 16.8.2000 and according to the plaintiff delivery of possession has been effected in his favour on the basis of an execution case levied by him. Defendant No. 4 filed application on 2.12.2000 for setting aside the ex parte decree without impleading other defendants but impleading the plaintiff. According to him he fell ill after entering appearance in the suit and when he recovered from illness he came to know that the suit had been disposed -off and accordingly, applied for certified copy of the judgment and decree on 31.8.2000 which was delivered to him on 7.11.2000. Thereafter on 2.12.2000 he filed application for setting aside the ex parte judgment and decree. By reason of the impugned order, the ex parte decree has been set aside and while doing so, the Court below recorded the finding that this defendant was prevented by sufficient cause from appearing in the suit on account of his illness.

(3.) MR . Rajani Kant Pandey, appearing on behalf of the Opposite Party, however, submits that Or. 9 R. 13 of the Code of Civil Procedure does not enjoin that all the defendants be made party in an application filed under Or. 9 R. 13 of the Code of Civil Procedure.