Devi Prasad Singh, J. - (1.) Heard Sri D. C. Jain, holding brief of Sri H. S. Sahai, learned counsel for the petitioners and Sri P. L. Mishra for opposite party No. 2. None present for opposite party No. 3.
(2.) According to the learned counsel for the parties plaintiff/opposite party No. 2 entered into an agreement with one Ram Krishna Giri on 15.12.1979 for sale of certain agricultural land. However, the land was purchased by the defendant/petitioners from Ram Krishna Giri on 6.10.1981. Accordingly a suit for specific performance of contract was filed by the plaintiff/opposite party No. 2. The suit was decreed without effective service of notice on defendant, on 27.7.1982. The trial court while decreeing the suit directed for execution of sale deed in favour plaintiff by the decree dated 27.7.1982. Defendant/petitioners filed application under Order IX Rule 13 of C.P.C. In September, 1982, for setting aside the ex parte decree and for decision on merit. The trial court had allowed the application by the judgment and order dated 27.5.1983 on payment of cost to the tune of Rs. 25. The finding of the trial court is that a notice was affixed over the house of defendant/petitioners. At the time when the notice was affixed the defendant /petitioners were not available in the house and they were out of station. The report of process server states that the petitioners were out of station.
(3.) Feeling aggrieved by the order dated 27.5.1983, passed by the trial court plaintiff/opposite party No. 2 had filed a revision under Section 115 of C.P.C. The revisional court after hearing the parties, allowed the revision by the impugned order dated 12.1.1985 and set aside the trial court's order on the ground that in view of the proviso of Order IX Rule 13 of C.P.C. mere irregularity is not sufficient to set aside the ex parte decree. It has been further held by the revisional court that in the mutation proceeding the statement of plaintiff Ram Raj was recorded on 17.3.1982 and in his statement it was stated by the plaintiff that he had already filed a civil suit for specific performance of contract. The finding of the revisional court is that there was only court of civil Judge in District Gonda and accordingly once the statement was made by the plaintiff Ram Raj in the mutation proceeding, it was incumbent on defendant to search out the case and appear in sutt to avoid ex parte decree.;