Amreshwar Pratap Sahi, J. - (1.) ISSUE notice to Respondent Nos. 3 and 4 returnable at an early date. Steps may be taken within a week. Learned Counsel for the Gaon Sabha and learned Standing Counsel for Respondent Nos. 1, 2 & 6 may file counter -affidavit within 3 weeks. Rejoinder -affidavit may be filed within a week thereafter. List thereafter.
(2.) A suit under Section 229 -B was instituted by the predecessors in interest of the Petitioner and the same came to be decreed in the year 1993. The Gaon Sabha filed an appeal against the said judgment and decree dated 3.10.1993. The appeal was allowed and the matter was remanded on 21.7.1994. After remand, notices were issued including a notice to the father of Respondent Nos. 3 and 4 Late Akram Khan. Sri Jain, learned Counsel for the Petitioners, submits that this notice was sought to be served on Mohd. Akram Khan, who refused to put his thumb impression thereon in the presence of two witnesses where after the said notice was pasted and the said Defendant did not put in appearance inspite of having knowledge of the proceedings after the remand. Sri Jain further submits that even earlier when the Suit had been decreed in 1993, Akram Khan did not choose to file an appeal against the same inspite of full knowledge of the judgment. Accordingly, the Suit came to be decreed on 25.6.1997. The said decree became final and the name of the father of the Petitioners came to be recorded in terms of the said judgment and decree.
(3.) IT is alleged that neither Akram Khan nor his sons after his death did choose to contest the matter or file any application. Akram Khan died on 10.3.2006. By that date he had not taken any steps for getting the judgment and Decree of 1997 set aside. His sons moved an application under Order IX Rule 13 on 12.5.2010 alleging that their father had no notice after the matter had been remanded in the year 1994 and, therefore, the judgment and Decree being ex -parte deserves to be set aside. The Petitioner filed an objection to the said application contending that the Respondents had ample knowledge about the judgment and decree and as a matter of fact they had taken steps for getting their names mutated in other villages where the name of their father Akram had been entered and, as such, the revenue records were known to them where the name of the Petitioners' predecessor had been recorded in terms of judgment and decree. These objections were categorically taken by the Petitioners yet neither the trial court nor the revising authority has taken any notice of the same and have simply proceeded on the premise that Akram Khan had not been put to notice, hence the judgment & decree is liable to be set aside.;