S.N.SRIVASTAVA, J. - (1.) THIS writ petition is directed against the order dated 31-5-1986 allowing the revision and reversing the order passed by trial Court dated 28-9-1985.
(2.) THE opposite party No. 2 Ram Narain filed a suit No. 798 of 1982 for partition of his 1/3rd share on the ground that after death of his father, all the three brothers have got equal share. The suit was decreed ex parte on 3-4-1982. An application filed by the defendant (present petitioner) on 22-9-1984 for recalling ex parte decree under Order IX, Rule 13 of the CPC was allowed and ex parte decree was set aside by the order dated 28-9-1985 on the ground that no notice was served to the defendant.
(3.) A revision preferred by the plaintiff was allowed and the order passed by the trial Court restoring the suit was set aside on the ground that no such application is maintainable as final decree was passed. Learned Counsel for the petitioner contends that on the date of the final decree prepared (on 20-10-1984) an application for restoration filed on 22-9-1984 was pending. No notice was served to defendant who came to know only on 17/18th September, 1984 about the decree when the Amin visited in village, he further contends that the suit for partition was not maintainable in view of the fact that partition had already taken place about 25 years back mutually, the ex parte decree was liable to be set aside. Defendant is entitled to get opportunity to contest the suit. Order passed by Revisional Court is vitiated in law as in the applications for restoration ex parte decree was rejected only on the ground that final decree was prepared and confirmed.;