( 1 ) THIS Letters Patent Appeal has been filed by the plaintiff in the suit who was successful in obtaining an exparte preliminary decree for partition against the respondent herein, who is hereinafter referred to as the defendant in the suit.

( 2 ) AGGRIEVED by the ex parte decree, the defendant in the suit filed an application under Order 9 Rule 13 CPC which was initially allowed subject to certain conditions. Those conditions were not fulfilled by him and therefore, the ex parte decree revived. Consequently, the defendant in the suit again moved an application for setting aside the exparte decree which was dismissed. That order was maintained by this Court in a Civil Revision Petition filed by him. After disposal of the Civil Revision Petition, the defendant in the suit filed an appeal before this Court along with an application under Section 5 of the Limitation Act for condoning the delay in filing the appeal. The application was allowed by the learned single Judge. Being aggrieved the plaintiff in the suit has preferred this Letters Patent Appeal.

( 3 ) THE learned Counsel for the appellant herein first argued that as the defendant had successfully pursued t