SAMPAT KUMAR SINGH Vs. RAM JANAM RAM

JUDGEMENT

(1.) THIS case has come up before us on a reference made by the learned Single Judge.

(2.) . Facts lie in a narrow compass. Plaintiff filed Mortgage Suit No. 77 of 1994 for a declaration that the defendant has no right to redeem the mortgaged property. In the suit, the defendant appeared on several dates but did not file the written statement. The learned Judge, in seisin of the suit, pronounced the judgment and a decree was accordingly drawn under Order 8 Rule 10 of the Code of Civil Procedure. Defendant filed application under Order 9 Rule 13 of the Code (hereinafter referred to as the Code) for setting aside the decree. The learned Munsif, 1st, Sasaram, by order dated 25.1.2000 passed in Miscellaneous Case No. 35 of 1996 rejected the said application, inter alia, holding that a decree passed in terms of Order 8 Rule 10 of the Code cannot be set aside under Order 9 Rule 13 of the Code. Defendant preferred appeal and the 5th Additional District Judge, Rohtas, Sasaram by judgment dated 22nd December, 2001, dismissed the appeal. While dismissing the appeal the Appellate Court observed as follows: - "I find and hold that the petition under Order 9 Rule 13 C.P.C. read with Section 151 C.P.C. filed by the appellant vide Misc. Case No. 35/96 for setting aside the judgment and decree passed under Order 8 Rule 10 C.P.C. by the learned court below in T.S. No. 77/94 is not at all maintainable and the impugned order of the learned court below in consonance of my aforesaid finding is proper, legal and valid and it does not require any intervention of this court in exercise of its appellate jurisdiction."

(3.) AGGRIEVED by the same, defendant preferred this Civil Revision application. The matter came up for consideration before a learned Single Judge on 7th May, 2004 and finding conflict of opinion between the two Single Judge decisions in the case of Sri Sri 108 Narashing Bhagwan Thakurbari vs. Tej @ Tek Narain Singh, 2000(3) B.L.J. 268 and in the case of Satya Narayan Sah vs. Brij Gopal Mundra, AIR 1991 Patna 60, had referred the matter for decision by a Division Bench. This is how the matter has come up before us.