DHANESHWAR MAHTO Vs. JAILAL MAHTO

JUDGEMENT

(1.) The instant petition under Article 227 of the Constitution of India directed is against the order dtd. 16/7/2022 passed by the Additional Munsif- VIII, Giridih in Civil Misc. Case No. 04 of 2020, whereby and whereunder, the petition filed under Order IX Rule 13 of CPC praying therein to set aside the ex-parte decree dtd. 17/6/1993 passed in Partition Suit No. 204 of 1991 has been sought to be quashed.

(2.) The aforesaid order dtd. 16/7/2022 has been challenged on the ground that the petition filed under Order IX Rule 13 of CPC is after the lapse of the period of 27 years and although the said petition was coupled with the application under Sec. 5 of the Limitation Act but the learned Court while allowing has issued notice as to why the decree dtd. 17/6/1993 passed in Partition Suit No. 204 of 1991 be not quashed and set aside by condoning the delay but without issuing notice on the issue of limitation.

(3.) The brief facts of the case as per the pleading made in the petition which requires to be enumerated, reads as under: The original plaintiff, namely, Devi Mahto, filed a Partition Suit No.204 of 1991 against the defendants in the court of Munsif, Giridih praying therein a decree claiming partition of 8 annas share in the suit property fully described in the schedule to the plaint and in the said case, summons were issued to the defendants and the defendants refused to receive and same and affidavit of process server was filed on 29/9/1992 and the service of notice upon the defendants were held proper and valid. The learned trial court, after considering the material on the record, decree the suit and accordingly preliminary decree was prepared on 9/7/1993 and final decree was also made on 4/10/2019 and the plaintiffs filed execution case on 2/2/2021 for execution of the final decree passed in Partition Suit No. 204 of 1991. Thereafter, the defendants filed Misc. Case No. 04 of 2020 before the Civil Judge, Junior Division, Giridih under Order IX Rule 13 of CPC along with a petition under Sec. 5 of the Limitation Act, 1963 for setting aside the ex-parte preliminary decree and all subsequent orders on the ground of non-service of summons. It is the case of the petitioner that no notice was issued to the petitioner in Misc. Case and the learned court without hearing the plaintiffs has passed the order for condonation of delay in filing the misc. case, the impugned order herein.