DAROGA PRASAD SINGH Vs. LAL BABU SINGH

JUDGEMENT

(1.) In this civil revision application, filed by the plaintiffs, the question falling for the decision of this Court is as to whether a defendant, against whom the suit has been dismissed, has any locus standi to maintain an application under Order IX, rule 13 of the Code of Civil Procedure.

(2.) The facts briefly stated are as follows : One Chhatha Mahton died leaving five sons, namely, (1) Bhajan Mahto, (2) Harsahay, (3) Safan Mahto (4) Guni Mahto, and (5) Jamadar Mahto. The plaintiffs are the grandsons' of Guni Mahto and defendant No. 1 the grandson of Sajjan Mahto Jamadar's branch became extinct some time in the year 1962. The other defen dants, namely, defendants 2 to 6 are from the branch of Bhajan Mahto and Harsahay, but they are in the third decrees. In these circumstances the plaintiffs instituted a title Partition Suit no. 96 of 1974 in the court of the Sub ordinate Judge, Siwan against defendant first party, claiming 2/3rd share (l/3rd each) in the estate of Jamadar Mahto which, as already stated had become extinct, on the ground that they succeeded to the same to the exclu sion of the other defendants. It was further stated in the plaint that the" members of the defendants second party had no concern with the lands in question, but they were simply impleaded to avoid any future complication.

(3.) On 1st June, 1974 when the suit was in the stage of service of summons etc., defendant No. 1 entered appearance. An affidavit in proof of the service of summons with respect to the other defendants was filed by the plaintiffs on the same day and a compromise petition was filed between the plaintiffs and defendant No. 1 and the suit was decreed in favour of the plaintiffs in terms of the compromise and dismissed ex parte against the other defendants. It is in these circumstances that opposite party No. 1, who was defendant No. 2 in the suit, filed an application under Order IX, rule 13 of the Code of Civil Procedure alleging that the decree obtained by the plaintiffs was collusive and no summon had been served on him. He further alleeed that the properties, which are partitioned were not of the estate of Jamadar Mahto nor those were ever in their possession or their ancestor, rather the properties were in his possession and that was the reason for the collusive expyrte decree.