D.N.PATIL, J. - (1.) THE present writ application has been preferred mainly against the order passed by the District Judge, Seraikella - Kharwawan dated 15.03.2007 in Miscellaneous Application No. 03 of 2006, whereby the Miscellaneous Application preferred by the respondent was allowed and thereby the ex-parte order passed in Title Appeal No. 01 of 1999 was quashed and set aside and Title Appeal No. 01 of 1999 was ordered to be re-heard by cancelling an ex-parte order in title appeal. The original defendant/appellant in title appeal No. 01 of 1999 has preferred this writ petition.
(2.) HAVING heard learned counsels appearing on behalf of both the sides and looking to the facts and circumstance of the case, I see no reason to entertain in this writ petition. (I) It appears that the present respondent is the original plaintiff, who has been allotted the land by the respondent (original plaintiff) sometime in the year 1973 for proper utilization of the land. It is alleged by the counsel for the petitioner that the land in question was not utilized at all for more than a period of two decades and, therefore, allotment was cancelled ultimately in the year 1994. (II) It appears that aggrieved by the order of cancellation, the present respondent, who is original plaintiff preferred Title Suit No. 73 of 1996 before the trial court, which was decreed in favour of the plaintiff vide judgment and decree dated 19th September, 1998. (III) It appears that the original defendant had preferred Title Appeal No. 01 of 1999 before the lower appellate court. There was also a delay of 300 days in preferring Title Appeal No. 01 of 1999. (IV) It appears that the notice was not served properly to the original plaintiff in Title Appeal No. 01 of 1999. It also appears in the facts of the case that no notice was ever issued much less a public notice in the application for condonation the delay in Title Appeal No. 01 of 1999. Thus, the lower court :- (a) condoned the delay of 300 days, without issuing any notice. (b) Without verifying the fact that whether the original plaintiff was served with the notice, passed an ex-parte order allowing the Title Appeal No. 01 of 1999 in favour of the original defendant vide order dated 24th of August, 2006. (V) It appears that being aggrieved by this ex-parte order in Title Appeal No. 01 of 1999, the original plaintiff preferred an application bearing Miscellaneous Application No. 03 of 2006 under Order 41, Rule 21 of the Code of Civil Procedure, for setting aside ex-parte order passed by the lower appellate court in Title Appeal No. 01 of 1999. (VI) It appears that as no notice was served upon the original plaintiff in Title Appeal No. 01 of 1999 and, therefore, an ex-parte order passed therein dated 24th August, 2006 was quashed and set aside in Miscellaneous Application No. 03 of 2006 preferred by the original plaintiff, was allowed vide order dated 15.03.2007. Whenever an ex-parte decree is to be passed, courts are waded with the duty to check as to whether or not the notice has been served properly to the respondents/opponent and always before condoning the delay, a notice ought to have been issued. This aspect of the matter has been properly appreciated, while allowing the Miscellaneous Application No. 03 of 2006. As a cumulative result of aforesaid facts and reasons, no error has been committed by the trial court in allowing Miscellaneous Application No. 03 of 2006 whereby an ex-parte order in Title Appeal No. 01 of 1999 was quashed especially when the cost has been imposed while allowing Miscellaneous Application and is also paid by the present respondent (original plaintiff).
(3.) IN view of these facts and reasons, there is no substance in this petition. Accordingly, this writ petition is dismissed.;