RAMESH KUMAR MERATHIA, J. - (1.) MISCELLANEOUS Appeal No. 302 of 2006 has been filed against the order dated 28.7.2006 passed by Shri Vijai Kumar Sharma, Sub Judge -I, Giridih in Misc. Case No. 9 of 2005 refusing to set aside the ex parte decree passed on 1.8.2005 in Partition Suit No. 120 of 2004; whereas in M.A. No. 399 of 2008 has been filed against the order dated 30.9.2008 passed by Shri Anil Kumar Singh, Sub Judge -I, Giridih in Misc. Case No. 5 of 2006 refusing to set aside the same ex parte decree.
(2.) COUNSEL appearing for the parties agreed that these appeals can be disposed of without issuing notice to the proforma respondents, as the contesting parties are before this Court. Accordingly, both the appeals were heard together. Mr. Manjul Prasad, learned senior counsel appearing for the appellants in M.A. No. 302 of 2006 and Mr. Jai Prakash, learned senior counsel appearing for the appellant in M.A. No. 399 of 2008 submitted that the impugned order is perverse. On the other hand, Mr. P.K. Prasad, learned senior counsel appearing for the respondents No. 1 and 2 in both the appeals supported the impugned orders. He further submitted that the applications in question filed by the appellants for setting aside ex parte decree were not maintainable in view of Order IX Rule 14 of the Code of Civil Procedure as the respondents No. 1 and 2 were not made parties therein.
(3.) MISCELLANEOUS Case No. 9 of 2005 was registered on the application filed by the appellants of M.A. No. 302 of 2006 under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed on 1.8.2005 in Partition Suit No. 120 of 2004. The trial court rejected it mainly on the ground that the appellants did not make any effort to get their signatures on the postal A.D. tested by the hand -writing expert and, therefore, it was presumed that summons have been served on them.;