JUDGMENT :

1. Leave granted. The application for bringing the legal representatives of the deceased second respondent allowed and the legal representatives are brought on record. Heard the learned counsel.

2. Respondents 1 and 2 filed a suit against the respondents 3, 4 and the appellants for declaration of title and consequential injunction. The parties are closely related. Plaintiff No. 1 and defendants 1 and 3 are brothers. Plaintiff No. 2, defendants 2 and 4 are the wives of plaintiff No. 1, defendant Nos. 1 and 3 respectively. The dispute related to properties left behind by the parents of the three brothers. On 31.10.1998, the suit was decreed ex-parte. The appellants herein (defendants 3 and 4 in the suit) filed an application under Order 9, Rule 13 of Code of Civil Procedure, 1908 (‘CPC’ for short) for setting aside the ex-parte decree, with an application under Section 5 of the Limitation Act, 1963 for condonation of delay, on 25.5.1999, alleging knowledge of the ex-parte decree on 23.5.1999. They also filed an application on 1.7.1999, for declaring the ex-parte decree a nullity, on the ground that it was the result of fraud. They alleged that the respondents 1 and 2 had misused an old vakalatnama signed by them several years prior to the suit when parties were joint, to make it appear that appellants had knowledge and entered appearance.

3. It is stated that respondents 3 and 4 herein (defendants 1 and 2) also subsequently filed a similar application under Order 9, Rule 13 of CPC for setting aside the ex-parte decree against them and that application was allowed.

4. On 28.5.2007, the trial Court dismissed the application for condonation of delay as also the application under Order 9, Rule 13 of CPC filed by the appellants on the ground that they had knowledge of the decree much earlier. The appellants filed an appeal before the High Court and that was dismissed as not maintainable on 24.7.2008. The High Court was of the view that the appellants ought to have filed a revision against the dismissal of the application under Section 5 of the Limitation Act, instead of filing an appeal against the dismissal of the application under Order 9 Rule 13 CPC. The said order is challenged in this appeal by special leave.

5. The appellants have claimed that some Advocate had filed the vakalatnama on their behalf without their knowledge and without their authority and then allowed the matter to proceed ex-parte and therefore, the Court ought not to have imputed knowledge of the proceedings, to them and that the fraud played ought to have been a sufficient ground for setting aside ex-parte decree.

6. The fact that the appellants were not served with summons in the suit, is not in dispute. On the facts and circumstances, the Trial Court ought to have condoned the delay and set aside the ex-parte decree. Insofar as the reason assigned by the High Court, as the petition under Order 9, Rule 13 was also dismissed and the appellants bona fide thought that appeal could be filed against dismissal, particularly in view of the fraud alleged, the High Court ought not to have taken a technical view of the matter. Further, if the appellants should be relegated to the remedy of revision at this stage, it will further delay the suit which will be detrimental to the plaintiffs (respondents 1 and 2). In the circumstances, to do complete justice between the parties, we are of the view that this is a fit case where ex-parte decree should be set aside.

7. We, accordingly, allow this appeal and set aside the order dated 24.7.2008 passed by the High Court and the order dated 28.5.2007 passed by the trial Court, allow the application for condonation of delay and the application under Order 9, Rule 13 and set aside the ex-parte decree against the appellants. Trial Court will now endeavour to dispose of the suit expeditiously.