- (1.) SUDHIR Narain, J. This writ petition arises out of an execution proceed ings.
(2.) RAM Chandra was a tenant of House No. D-36/145, Agustkunda, City Varanasi. One Govind Kanthaley was the original landlord. He sold the house to Pasant Rao Vedanti and Smt. Radha Devi Vedanti, respondents Nos. 3 and 4, by sale deed dated 31. 3. 1983. Respondent Nos. 3 and 4, after purchasing the property, sent a notice to RAM Chandra the tenant on 4. 8. 1983 demanding arrears of rent for the period 1. 4. 1983 to 31. 8. 1983. The notice is alleged to have been served by refusal. Respondent Nos. 3 and 4 filed Suit No. 480 of 1983 in the Court of Judge, Small Causes Court for arrears of rent and eject ment and damages, The tenant did not put in appearance in the suit and the court proceeded ex parte. On 14. 3. 1984 the suit was decreed ex parte for ar rears of rent and ejectment. Ram Chandra filed an application under Order IX, Rule 13 for setting aside the ex parte decree dated 14. 3. 1984. The said application was rejected by the Judge, Small Causes Court for non-compliance of Section 17 of the Provincial Small Clauses Court Act. Ram Chandra preferred Misc. Appeal against the said order. During the pendency of the said appeal Ram Chandra died. Smt. Rama Devi and the sons of Ram Chandra filed application for sub stitution. The substitution application was allowed. The Misc. Appeal was dis missed. The petitioner did not file an application for her impleadment in that Misc. Appeal. After the dismissal of Misc. Appeal, writ petition was filed by the widow and sons of Ram Chandra in this Court. The writ petition was dis missed by this Court on 4. 9. 1991. The decree-holder respondents filed application for execution of the decree. The pursuance of the said decree they obtained possession of one room of the disputed accommodation. The petitioner for the first time filed objection under Section 47, C. P. C. in the execution case. The petitioner al leged that the ex parte decree dated 14. 3. 1994 is nullity and the same cannot be executed. The petitioner further filed an application for restoration of pos session which was taken by the decree-holder in the execution case. The trial court rejected the objection of the petitioner filed under Section 47, C. P. C. as well as the application for restoration of possession by order dated 25. 1. 1993. The petitioner preferred Civil Revision No. 41 of 1993. Respondent No. 1 dis missed the said revision by order dated 10. 1. 1994. The petitioner has chal lenged these orders in the present writ petition.
(3.) I have heard learned Counsel for the parties. Learned Counsel for the petitioner urged that ex parte decree dated 14. 3. 1984 is nullity. The court had not passed the decree in accordance with law keeping in view the provisions of Order XX, Rule 4 of C. P. C. The suit was decreed by the Judge, Small Causes Court by delivering formal judgment which runs as under : "this is the suit for arrears of rent and ejectment. The deft, has not contested the case and the case has proceeded ex parte against him. The plaintiff has proved his case through the affidavit 10-D. ORDEr The suit is decreed ex parte against the defolt. The defolt. To vacate the house in suit and deliver the possession to the plaintiff within 2 months and pay Rs. 175 towards arrears of rent up to 15. 9. 1983. The plaintiff will get mesne profits for pendente lite and future period at the rate of Rs. 32 per annum provided the court-fee is paid in execution. Dt. 14. 3. 1984. Sd/- R. N. Misra, J. S. C. C. Varanasi. " The plaintiff, in support of his case, had filed an affidavit. Copy of the said affidavit has been annexed as Annexure-9 to the writ petition. In the af fidavit the plaintiff had stated the facts which were stated by him in the plaint. It was stated by him that a notice dated 4th August, 1984 was sent to the defendant claiming the rent for the period 1st April, 1983 to 31st August, 1983 at the rate of Rs. 32 per month, total Rs. 128 but in spite of service of notice on 16th August 1983 he did not pay any amount and thereby he com mitted default. It was further stated that the notice was sent demanding ar rears of rent and terminating the tenancy. The Judge Small Causes Court while decreeing the suit relied upon the said affidavit. Admittedly the defen dant had not put in appearance and did not file written statement in the case.;