S.C. Dharmadhikari, J.

This appeal challenges an order passed by the learned Single Judge on 5th December, 2008 in Notice of Motion No. 3791 of 2008.

2. The undisputed facts are that, Civil Suit No.2633 of 2007 is filed in this court by the first respondent-plaintiff. The appellants before us are the heirs and legal representatives of original defendant No. 8. The respondents to this appeal are the other defendants. The further undisputed fact is that the prayers in the suit are that the property, more particularly described in the schedule annexed and marked as Annexure “A” to the plaint, be partitioned by metes and bounds and vacant and peaceful possession thereof be handed over to the plaintiff in respect of her 6.25% share and the balance be distributed between the defendant Nos.1 to 16. The other prayers are either in the alternative or in furtherance of the main prayer for partition.

3. It is common ground that in a notice of motion being Notice of Motion No.3536 of 2007 moved in the said suit, appeared before the learned Single Judge on 23rd September, 2008 and at the hearing of the same, the court proceeded to pass a decree of partition and separate possession in terms of prayer clause (a) against the appellant (original defendant No.8) and defendant Nos.12 to 17. The court also proceeded to pass a decree in favour of the plaintiff in terms of prayer clause (c), for possession. Thus, at the hearing of the notice of motion for interlocutory relief, the suit itself came to be decreed.

4. On 31st October, 2008, original defendant No.8 predecessor in title of the appellant before us filed the instant notice of motion under O.9 R.13 of the Civil Procedure Code on which the impugned order has been made. The prayer in the motion is of setting aside the exparte decree in the suit.

5. In the affidavit in support of this notice of motion, Defendant No.8 contended that he has not been served with any papers, summons, pleadings or records in the matter. He learnt about an exparte decree only in the middle of October, 2008 when defendant No.9 informed him about the same. After much persuasion, defendant No.9 furnished him a copy of the exparte decree. He contended that after going through the records, it became apparent that the plaintiff made a false statement before the court that defendant No.8 has been duly served with the notice of motion, writ of summons and the papers and records of the suit. However, upon inspection of the record, it revealed that the plaintiff and all defendants to the suit are aware that defendant No.8 is a nonresident Indian settled in Leicester, England. Having acquired such a status, he was not available at any time in the address mentioned in the cause title of the suit. The plaintiff is a paternal aunt of defendant No.8 and is fully aware of this fact. Despite this, by creating an impression that the writ of summons and related papers are duly served upon the defendant, the subject decree has been obtained by practicing a fraud on this court. He has pointed out that the suit is for partition. The court has not ascertained the share of each of the defendants in the joint properties by passing a preliminary decree. He pointed out that on merits, there is an excellent case in asmuch as that a registered Gift Deed was made by father of defendant No.8 and defendant Nos.9 and 11 by which ½ undivided share in the suit property was gifted to defendant Nos.8, 9 and 11. By virtue of this Deed of Gift, the defendant No.8 has become entitled to 1/3rd of half the undivided share in the suit property that is his share is to the extent of 16.66%. However, perusal of the decree shows that the share has been reduced to 9.1%. He has set out the further facts with regard to the Deed of Gift and pointing out that having been residing in England for the past 17 years, there is no question of any knowledge of the proceedings nor can it be said that there is any substituted service being effected nor can it