S.N.Sanyal, J. - (1.) This revisional application at the instance of the petitioner is directed against an order dated December 23. 1971 passed by the learned Additional District Judge, 5th Court, Alipore, in Misc. Appeal No. 592/70 setting aside the ex parte decree in Title Suit No. 1064 of the Court of the leaned Subordinate Judge 7th Court, Alipore, on reversal of the order dated November 18, 1970 passed by the learned Subordinate Judge, 7th Court, Alipore in Misc. Case No. 56 of 1969.
(2.) The facts preceding the present Rule may be summarised as follows : Title Suit No. 10/64 was instituted in the 7th Court of the learned Subordinate Judge, Alipore, for eviction of the opposite parties and for injunction and mesne profits. The suit was dismissed on contest on March 30, 1968. The said decree was set aside in Title Appeal No. 924/68 on December 24, 1968. The case was sent back on remand for decision framing appropriate issues. The suit was thereafter decreed ex parte on November 19, 1969. Defendant No. 4 Provabati (for self and on behalf of her minor sons Bhutnath and Mantu (defendants 5 and 6) filed an application under Order 9, Rule 13 of the Code of Civil Procedure (Misc. Case No. 56/69) on December 10, 1969 for setting aside the ex parte decree on the ground that summons was not served upon them and the minors had not been properly represented. The petitioners of Misc. Case No, 56/69 are opposite parties Nos. 1-3 in the present Rule. Defendant No. 1 Subala Roy for self and on behalf of her minor sons (defendants Nos. 2 and 3) filed an application under Order 9, Rule 13 of the Code (Misc. Case No. 58/69) on December 18, 1969 for setting aside the ex parte decree on the ground that due to traffic jam she was late in attending Court and could not be present when the suit was called on for hearing. The learned Subordinate Judge dismissed both the applications. As regards Misc. Case No. 58/69, he disbelieved the story of Subala and held that there was no sufficient ground for her default. Regarding Misc. Case No. 56/69, the finding of the learned Subordinate Judge was that summons was served upon Provabati and she had filed written statement after her appearance. Defendants Nos. 4-6 challenged the said decision of the learned Subordinate Judge in Misc. Appeal No. 592/70. Defendants Nos. 1-3 did not prefer any appeal.
(3.) The learned Additional District Judge agreed with the learned Subordinate Judge and found that summons was duly and properly served upon Provabati and she duly entered appearance in the suit and filed written statement. The learned Judge of the Court of appeal below, however, allowed the appeal and set aside the ex parte decree on the ground that summons had not been served upon the minors and there was no appearance of the minors in the suit. The petitioner has challenged the said decision of the learned Additional District Judge in the present Rule.;