KALIMUDDIN AHAMMAD Vs. ESAHAKUDDIN

JUDGEMENT

(1.) The circumstances which have led up to the present appeal are as follows. A partition suit was instituted on December 20, 1918, against several defendants, among whom the present appellant was No. 4. Two of the defendants contested the suit, and on September 22, 1919, a preliminary decree for partition was made on contest against two of the defendants and ex parte against the others. The present appellant did not appear at all in the first Court, and he is one of those against whom the decree was made ex parte. On December 17, 1919, the first defendant alone preferred an appeal against the decree to this Court, and three days later, on December 20, the appellant presented an application to the trial Court under Order IX, Rule 13 of the Civil Procedure Code. This application was kept pending until after the disposal of the appeal preferred by the first defendant.

(2.) The fate of that appeal was this. One of the respondents died, and as the appellant did not take proper steps to bring her heirs on the record, the appeal was dismissed as against them; and then as against the others it was held that in the absence of the heirs of the deceased respondent the appeal could not proceed: it was accordingly dismissed. This was on January 5, 1922.

(3.) Then the record was returned to the lower Court, and the appellant's application came on for hearing. On April 8, 1922, a petition of compromise between the plaintiff and the appellant was presented, and in accordance therewith the Court ordered that the suit should be restored to its original number as against defendant No. 4 in regard to three only of the plots mentioned in the plaint, those three plots together constituting the basabati. In making this order the Court proceeded on the compromise alone without any enquiry as to the causes which prevented defendant No. 4 from appearing at the trial. A few days later three defendants (not among the original defendants) were added; they are said to have taken a conveyance from the first defendant before the institution of the suit.