Shamsudduin Ahmed, J. - (1.) The petitioner herein has challenged an order dated 7.4.1989 passed by the learned Assistant District Judge, 3rd Court at Howrah in title Suit No.75 of 77. The impugned order was an order on an application under section C.P.C filed by the petitioner. By the said petition the petitioner challenged the preliminary decree which was passed on 23.7.1984. He appeared in the suit. The learned Court found that the date of hearing was known to him. But the petitioner pleaded that as he was ill during the period. He could not appear. The learned Judge noted that he was curious that the defendant took no steps for setting aside the ex parte decree for a period of four years. Accordingly, the learned Judge dismissed the application.
(2.) To appreciate the point raised brief facts of the case may be recalled, disputed properties belonged to deceased Dr. Dhirendranath Roy, the husband of Plaintiff No.4 and father of Plaintiff Nos. 1, 2, 3 and Defendant Nos. 1 and 3 and father-in-law of Defendant No.5. Dhirendra had two wives, the first wife Nirmala died leaving behind Defendant No. 1 and his brother Pratap Chandra Roy, husband of Defendant No.5. Plaintiff Nos. 1, 2 and 3 are sons of Dhirendra by second wife, Plaintiff No. 4. Dhirendra died leaving these heirs and each of them inherited 1/8th shares in the disputed property. On death of Lakshmi Moni the second wife the property again devolved on his son and according to the plaint case each of them had 1/7th shares in the property in dispute. At the instance of Lakshmi Moni executed a Deed of Gift in favour of Defendant No. 1 and late Pratap in respect of some of "A" schedule properties in their favour. Those properties are mentioned in a schedule "C" to the plaint. Accordingly, the defendant denied title of the plaintiff in respect of the properties covered by the deed of gift.
(3.) It appears that a compromise petition was filed by the plaintiff and some of the defendants. The said compromise petition was disposed of by an order dated 23.7.1984. The compromise was filed by the plaintiffs and Defendant Nos. 2 and 3. The learned Judge ordered that the suit be decreed ex pane as against Defendant No. 1 and disposed of as against others in terms of solenama which do form a part of the decree. It appears from the petition or compromise that the parties thereto agreed for declaration that each of the plaintiff and defendants as 1/7th shares in the suit property. It also stipulated that the preliminary decree dated 10.4.1976 passed in title Suit No.55 of 74 shall be declared as not binding upon the plaintiffs and Defendant No.3. It was also prayed that the suit will be decreed against Defendant Nos. 2 and 3 in terms of the compromise and Defendant No. 1 as ex parte without cost.;