A.N. Jindal, J. - (1.) THE Petitioners have invoked the provisions of Article 227 of the Constitution of India for setting aside the order dated 07.08.2010 passed by the Civil Judge (Junior Division), Abohar, dismissing the application of the Petitioners under Order 9 Rule 7 of the Code of Civil Procedure for setting aside the ex -parte proceedings initiated against Mohinder Kumar, deceased father of the Petitioners.
(2.) THERE were six Defendants in the suit filed by Plaintiff -Respondent No. 1 (hereinafter referred to as 'Respondent'), out of whom Mohinder Kumar was proceeded against ex -parte, whereas, the other Defendants are still contesting the suit. The factual background of the case is that Respondent Nos. 1 and 2 had filed a suit for separate possession by way of partition against Mohinder Kumar, husband of Petitioner No. 1 and father of Petitioner Nos. 2 to 4 as well as against the proforma Respondents. On the report submitted by the Process Server regarding refusal of Mohinder Kumar, he was proceeded ex -parte on 27.10.2004. However, he died on 10.10.2007 during the pendency of the suit. Thereafter, Petitioners applied for impleading themselves as legal representatives of Mohinder Kumar and for setting aside the ex -parte proceedings taken against Mohinder Kumar, on 15.10.2009. The Petitioners had submitted in the application that they had come to know about the pendency of the suit only on 15.10.2009 and thereafter, they moved an application for impleading themselves as legal heirs and for setting aside the ex -parte proceedings. In the reply to the said application, it was submitted that as Mohinder Kumar (since deceased) was proceeded against ex -parte on 27.10.2004, therefore, the application being belated one, should be dismissed.
(3.) HAVING heard the rival contentions, it appears that Mohinder Kumar was not properly served in the case. Merely on the basis of the report of refusal, he was proceeded against ex -parte.;