S.K.Mookherjee, J. - (1.) The present appeal is at the instance of the substituted heirs of the sole defendant in a suit for eviction, which had been decreed ex parte on 2nd August, 1982, and for setting aside of which, infer alia, an application under Order 9, Rule 13 mad with Section 151 of the Code of Civil procedure had been preferred, giving rise to Misc. Case No. 624 of 1982. The learned Munsiff, by the impugned Order, rejected the Misc. Case and such order is under challenge in the present Miscellaneous Appeal. The ground, which had been pleaded as sufficient cause for nonappearance of the sole defendant on the date the ex pane decree had been passed, appears to be intermittent insanity of the sole defendant, who has since died.
(2.) It appears from the materials on record that on 12th April. 1982, an application was made on behalf of the defendant, on verification by the defendant's brother, bringing to the notice of Court, the alleged insanity and the Court fixed 21.4.82 for furnishing particular but no such particulars having been furnished show-cause was issued against the defendant, which again, not having complied with, the matter was directed to appear for Orders on 12th June, 1982, in presence of learned Advocates for the parties. On the date when the matter appeared for such Orders, none was present on behalf of the plaintiff but the learned lawyer for the defendant was present and a hazira was filed on behalf of the defendant and on that date the Court feed up the hearing of the suit on 2nd August, 1982, when the ex parte decree had been ,passed.
(3.) In rejecting the Mice. Case the Trial Court had held, inter alia, the following :- (i) The alleged insanity was untenable. (ii) There was nothing in Court Records, except the petition dated 12.4.82, about the mental or insanity or unsoundness of mind of the petitioner. (iii)Between Match 1982 and April 1982, the petitioner was in Bangiya Unmad Ashram but what occurred thereafter was not established. (iv)Defendant's brother who claimed to have been looking after the case was aware of the date of ex parte hearing. There was no sufficient cause. (v) Since legal representatives of the petitioner were available, brother has no teas locus standi to initate the Misc. Case. (vi)Mise was burred by limitation. ;