- (1.) Heard learned counsel. Special leave granted.
(2.) This appeal arises out of a suit for partition filed by the appellants herein in the court of Sub-Judge, Purnea, in the year 1969. Gulabchand Sah, respondent 1 herein, was defendant 2 in the said suit, and after his death his legal representatives have been brought on record as respondents 1 (a) to (J) MOHAN Lal Sah, respondent 2 herein, was defendant 3 in that suit. On 25/04/1969, a compromise petition was filed on behalf of respondent 1 and appellant 1, but no orders were passed on it because the suit was being contested by the other defendants. No interest was, however, taken by respondent 1 in the said proceedings after filing the said compromise petition. An injunction was granted by the trial court in the suit whereby the defendants were restrained from making any construction on some of the plots. The said injunction was vacated by the appellate court insofar as respondent 2 was concerned and the appellants went in revision against the said order to the High Court. The said revision was dismissed by the High Court on 24/04/1973 on an agreement between the parties that respondent 2 will not make any further construction. After receipt of the record of the suit from the High Court, the trial court on 26/02/1977 directed that requisites be filed for issuance of registered letter and by order dated 2/03/1977 it was further directed that lawyers appearing for parties be informed. On 25/03/1977, when the suit was taken up for hearing, neither respondents 1 and 2 nor their advocates were present and an ex parte preliminary decree was passed. On 20/07/1981, two separate applications were filed by respondent 1 and respondent 2 for setting aside the said ex parte preliminary decree. The said applications were contested by the appellants and after recording evidence of the parties, the trial court, by separate orders dated 18/04/1983, dismissed both the applications. Appeals filed against these orders were dismissed by a common judgment dated 23/05/1985 by the District Judge, Purnea. Separate revision petitions were filed by respondent 2 and respondent 1 against the said order of the District Judge. Civil Revision No. 965 of 1985, filed by respondent 2 was dismissed by order of the High court (B. P. Jha, A. C. J. ) dated 10/08/1987. Civil Revision No. 851 of 1985. filed by respondent 1 was, however, allowed by a division bench of the High court by order dated 4/05/1992. Feeling aggrieved by the said order of the High court dated 4/05/1992, the appellants have filed this appeal.
(3.) Shri Ranjit Kumar, the learned counsel appearing on behalf of the appellants, has urged that the trial court as well as the appellate court have found that respondent 1 was not prevented by sufficient cause from appearing before the court when the case was called for hearing on 25/03/1977 and further that the application for setting aside the ex parte decree was hopelessly barred by limitation and that the High Court was not justified in interfering with the said order in exercise of its revisional jurisdiction under Section 1 15 Civil Procedure Code. In this context, the learned counsel has pointed out that in similar circumstances, the High court, by its earlier order dated 10/08/1987, had dismissed the revision petition filed by respondent 2, Shri Harilal Agarwal, the learned senior counsel appearing for respondents 1 (a) to (j) , has, however, submitted that there is a distinction between the case of respondent 2 and that of respondent 1 in the matter of setting aside the ex parte decree inasmuch as while in the case of respondent 2 notice had been given to Shri K. K. Niyogi, advocate appearing for respondent 2 in the trial court, no such notice was given to Shri Anil Ranjan Mitra, advocate appearing for respondent 1 in the trial court, and since no notice was given to counsel for respondent I, the High court was justified in setting aside the ex parte decree.;