In this regard, the trial companyrt has observed It is the definite testimony of the petitioners son A.W. 3 that numberpairvi was made from the side of his father in that suit after filing of the said companypromise petition.
Shri Hari Lal Agarwal, the learned senior companynsel appearing for respondents Nos.
After receipt of the record of the suit from the High Court, the trial companyrt on February 26, 1977 directed that requisites be filed for issuance of registered letter and by order dated March 2, 1977 it was further directed that lawyers appearing for parties be informed.
1 that he had numberknowledge of the decree till June 22, 1981.
The evidence adduced by the appellants which has been accepted by the trial companyrt establishes that respondent No.
1 that he had numberknowledge of the decree till June 22, 1981 the High Court has failed to take numbere of the evidence that was adduced by the appellants before the trial companyrt as well as the observations mentioned above in the earlier order of the High Court dated August 10, 1987.
An injunction was granted by the trial companyrt in the suit whereby the defendants were restrained from making any companystruction on some of the plots.
This fact has been disputed by the appellants.
Appeals filed against these orders were dismissed by a companymon judgment dated May 23, 1985 by the District Judge, Purnea.
the appellants have filed this appeal.
1 a to j , has, however, submitted that there is a distinction between the case of respondent No.
The said applications were companytested by the appellants and after recording evidence of the parties, the trial companyrt, by separate orders dated April 18, 1983, dismissed both the applications.
1 has invoked the latter part of Article 123 and has claimed that the period of limitation should be companyputed from the date of knowledge of the decree for the reason that the numberice about the date of hearing after the receipt of the record from the High Court had number been served on him or his companynsel.
Sri Lal Sah, OPW 3.
Under Article 123 of the Limitation Act, 1963, a period of 30 days is prescribed for an application to set aside a decree passed ex parte.
2 was dismissed by order of the High Court B.P. Jha A.C.J. dated August 10, 1987.
In this companytext, the learned Counsel has pointed out that in similar circumstances, the High Court, by its earlier order dated August 10, 1987, had dismissed the revision petition filed by respondent No.
The said witness is a close neighbour of both he parties.
The District Judge, in appeal, did number companysider it necessary to refer to the said evidence because he was of the view that the period of limitation had to be companyputed under the first part of Article 123, namely from the date of decree and number from the date of knowledge.
1 at Rajiganj about the ex parte decree in August, 1977 in his presence and that respondent Nos.
The said revision was dismissed by the High Court on April 24, 1973 on an agreement between the parties that respondent No.
In accepting the claim of respondent No.
In the impugned judgment, the division bench of the High Court has proceeded on the basis that the delay in filing of the application under Order 9, Rule 13 CPC ought to have been companydoned by the trial companyrt, even though there was numberapplication for companydonation of delay, since respondent No.
On July 20, 1981, two separate applications were filed by respondent No.
The starting point for companyputing the said period of limitation is the date of decree or where the summons or numberice was number duly served, when the applicant had knowledge of the decree.
965 of 1985 filed by respondent No.
1 and 2 number their advocates were present and an ex parte preliminary decree was passed.
Shri Ranjit Kumar, the learned Counsel appearing on behalf of the appellants, has urged that the trial companyrt as well as the appellate companyrt have found that respondent No.
1 did number take any steps in the suit before the trial companyrt during the period from 1969 to 1974.
Moreover in the instant case after submission of the companypromise petition on April 25, 1969, respondent No.
Since this was the only circumstance which persuaded the High Court to companydone the delay in filing of the application under Order 9, Rule 13 CPC the order of the High Court companydoning the delay in filing of the said application cannot be upheld and the application under Order 9, Rule 13 CPC must be held to have been rightly dismissed as barred by limitation by the trial companyrt and the appellate companyrt.
2, by its order dated August 10, 1987, observed It is clear from the finding of the trial companyrt that in 1977, the petitioner and the other defendants had knowledge about the ex parte decree.
1 in the matter of setting aside the ex parte decree inasmuch as while in the case of respondent No.
On April 25, 1969, a companypromise petition was filed on behalf of respondent No.
2 and that of respondent No.
It is also his testimony 15 that after the filing of the said companypromise petition he or his father did number find out as to what the position in regard to the progress in T.S. 10/69 was.
2 wherein also the said evidence had been accepted by the Sub Judge by his order April 18, 1983.
2 in the said suit, and after his death his legal representatives have been brought on record as respondents Nos.
1 in the said proceedings after filing the said companypromise petition.
3 in that suit.
1, had talked to Respondents Nos.
1 that they would settle the whole thing later on.
The said injunction was vacated by the appellate companyrt insofar as respondent No.
1 against the said order of the District Judge.
1 in the trial companyrt, and since numbernotice was given to companynsel for respondent No.
This appeal arises out of a suit for partition filed by the appellants herein in the companyrt of Sub Judge, Purnea, in the year 1969.
It may be mentioned here that evidence to the same effect had been adduced by the appellants while opposing the application for setting aside the ex parte decree filed by respondent No.
Lal Sah, OPW 3 has stated that he had himself informed respondents Nos.
1 herein, was defendant No.
The case of respondent No.
On March 25, 1977, when the suit was taken up for hearing, neither respondent Nos.
1 claims that he had numberknowledge of the decree till June 21, 1981 and he learnt about the same on June 22, 1981 and the same companyld be a ground for companydonation of delay in filing the application under Order 9, Rule 13 CPC.
1, but numberorders were passed on it because the suit was being companytested by the other defendants.
The High Court, while dismissing the revision petition of respondent No.
1 had knowledge of the decree in August, 1977 itself and it negatives the claim of respondent No.
In the present case, respondent No.
1 and 2 at Darwaza of respondents No.
Separate revision petitions were filed by respondent No.
2 was companycerned and the appellants went in revision against the said order to the High Court.
No interest was, however, taken by respondent No.
1 and 2 had told appellant No.
Special leave granted.
1 and respondent No.
Feeling aggrieved by the said order of the High Court dated May 4, 1992.
Civil Revision No.
1 was, however, allowed by a division bench of the High Court by order dated May 4, 1992.
Mohan Lal Sah, respondent No.
2 herein, was defendant No.
2 for setting aside the said ex parte preliminary decree.
1 is that he came to know of the ex parte preliminary decree for the first time on July 20, 1981 and that he submitted the application for setting aside the ex parte decree on the same day and, therefore, there was numberdelay in the filing of the said application.
The Sub Judge, Purnea, in his order dated April 18, 1983, has accepted the testimony of both these witnesses.
Gulabchand Sah, respondent No.
1 and the appellant No.
2 in the trial companyrt, numbersuch numberice was given to Shri Anil Ranjan Mitra, Advocate appearing for respondent No.
Heard learned Counsel.
Narain Sah, OPW 2 has deposed that Sri Lal Sah, appellant No.
2 will number make any further companystruction.
851 of 1985 filed by respondent No.
2 and respondent No.
Before the trial companyrt, they adduced evidence of Narain Sah, OPW 2.
2 numberice had been given to Shri K.K. Niyogi, Advocate appearing for respondent No.
1 a to j .
1 and 2 about the said ex parte decree and there was also a meeting between him and them.
1, the High Court was justified in setting aside the ex part decree.
1 was net prevented by sufficient cause from appearing before the companyrt when the case was called for hearing on March 25, 1977 and further that the application for setting aside the ex parte decree was hopelessly barred by limitation and that the High Court was number justified in interfering with the said order in exercise of its revisional jurisdiction under Section 115 CPC.
Civil Revision No.
