An appellate court has jurisdiction in an appeal against a decree made ex parte to revise the decree on the ground that the court was wrong in proceeding to decide the suit ex parte.

( 1 ) QUITE an elaborate argument was addressed in what appears to me to be a simple case in which the only question for determination is whether there is any case made out for the reversal of the decree made ex parte by the court below.

( 2 ) THE real contesting parties herein are two brothers. The first plaintiff is the wife of the second plaintiff. His brother is the second defendant and the wife of the latter is the first defendant. On the strength of the deed of sale dated 12/04/1961, the first plaintiff is claiming a half share of the property covered by the deed. The terms of the deed show that the first plaintiff and first defendant have together acquired the property. There is no doubt that according to the apparent tenor of the document the two women are the co-owners. There is nothing in the deed to show that their sharers are not equal.

( 3 ) THE written statement does not impugn the validity of the sale deed. The defence is that the second plaintiff desired that the purchase should be jointly made and so the deed was taken in the joint names of the ladies. but that the consideration was 0-aid exclusively by the second defendant. The inclusion of the name of the first plaintiff in the deed was nominal and does not confer any right on her.

( 4 ) IT may be mentioned that the property acquired under the sale deed was the ancestral house of the family. It was sold in a court auction and one Jaggarao was the purchaser at the execution sale. It was for that for reason that when a conveyance was intended to be taken from Jaggarao, the second plaintiff expressed the desire that the property should be jointly acquired by the wives of the two brothers. And so it was done; according to the plaintiff the acquisition was for the benefit of both the brothers and the deed was taken in the name of their wives.

( 5 ) THIS action for partition was laid on 21-12-1966. The first attempt at service proved unsuccessful and so from 7-3-1967 the case stood adjourned till 14-4-1967. The renewed attempt to service the defendants fared no better and after several attempts. service of notices was effected in July 1967. It is an amazing feature of this case that so much time and effort were called for the preliminary step-p of serving the defendants with notice of the suit. although they were living in the same house as the plaintiff. It may have been an amusing game of hide and seek for the parties but it is distressing to note that parties intent on procrastination of legal proceedings could not be effectively curbed and the means of expeditious service had not been availed of.

( 6 ) ON 24-7-1967 the defendants failed to appear and were set ex party and an ex parte judgment followed on 31-7-1967.

( 7 ) ON 14-8-1967 the defendants filed applications to have the ex parte decree set aside. Their prayer was allowed and after restoration the suit was posted to 21-9-1967 for the written statements of the defendants. An adjournment allowed them time till 29-91967 but even that did not suffice and at their request they obtained time till 17-10-1967. On that date, their answer was presented and issues were also settled by the court. Time was allowed for filing of documents but none were put in court. The case stood posted for trial to 23-12-1967 and then to 4/01/1968.

( 8 ) THE defendants contended that what is apparently real as per Ex. A. 1 the sale deed, is nominal. On them rests the legal or persuasive burden of proving that plea. They had to lead evidence in the first instance; they bear the risk of non-persuasion. The incidence of the burden was rightly fixed on them because they have to satisfy the court that the apparent co-ownership is a myth. They made no discovery of their documentary evidence. Nor did they ask for the courts aid for summoning any witness. It was a total unpreparedness for the trial when it began on 14-1-1968. The position remained unchanged thereafter though the case had undergone repeated adjournments, t