FREDRIC CHARLES SMITH Vs. ALOIS BARLA

JUDGEMENT

(1.) THIS civil revision application under Sec. 115 of the Code of Civil Procedure has been filed by defendant No. 2 - -petitioner challenging the judgment xand order dated 8.6.2006 passed by District Judge, West Singhbhum at Chaibasa in Misc. Appeal No. 4 of 2005 by which he has dismissed the appeal and confirmed the order dated 21.6.2005 passed by the Mun -sif, Chaibasa in Misc. Case No. 17 of 2003 rejecting the petitioner 'sapplication under Order IX Rule 13, CPC for setting aside exparte decree passed in Title Suit No. 2 of 1997.

(2.) THE facts of the case lie in a narrow compass: The plaintiff -opposite party filed Title Suit No. 2 of 1997 for declaration of right, title and interest and for confirmation of possession and in the alternative, for recovery of possession of the suit land after holding that the Municipal Survey Settlement Entry in respect of the suit land in the name of the defendant -petitioner finally published in 1973 is wrong and erroneous and the same ought to have been recorded in the name of the plaintiff. The said suit was decreed ex parte on 18.2.1999. The petitioner 'scase is that he came to know about the ex parte decree for the first time on 10.11.2003 from his neighbour who informed him about the Execution Case No. 09 of 1999 pending in the Court of Munsif for delivery of possession. The petitioner on receipt of the information, made an inquiry on 11.11.2003 and came to know about the suit and the ex parte decree passed on 18.2.1999. The petitioner accordingly made an application under Order IX, Rule 13 for setting aside exparte decree which was registered as Misc. Case No. 17 of 2003. The said Misc. Case was dismissed by the Munsif holding that summon was duly served on the petitioner (defendant No. 20). The petitioner then preferred appeal before the District Judge, Chaibasa being Misc. Appeal No. 4 of 2005 which was dismissed and the order of Munsif was confirmed.

(3.) MR . M.S. Anwar, learned Counsel appearing for the plaintiff O.P., on the other hand, submitted that the mother of the petitioner received summon on behalf of her son -petitioner also. Learned Counsel submitted that PW 2 admitted in his evidence that petitioner 'sdaughter is living in Kolkata and that one Ibraham Bhengra, who informed the petitioner about the ex parte decree, has not been examined. Learned Counsel further submitted that defendant No. 1, who is mother of the petitioner, has also not been examined.