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SHIVESHWAR PRASAD SINHA, SHAMBHU PRASAD SINGH
Mst. Nagina Devi – Appellant
Versus
Brijnandan Pd. Sinha – Respondent
Certainly. Based on the provided legal document, here are the key points summarized with appropriate references:
The court held that Order 9, Rule 13 of the Civil Procedure Code (CPC) applies to proceedings for final decree in a partition suit because such proceedings are considered a new proceeding within the meaning of Section 141 of the CPC, requiring notice to be given to the parties afresh (!) (!) .
The appellants demonstrated sufficient cause for their non-appearance in the proceedings for the final decree, primarily because they had no notice of the proceeding either directly or through their lawyer (!) .
The application to set aside the ex parte final decree was not barred by limitation, as the appellants came to know of the decree within 30 days of filing their application (!) .
The court emphasized that the proceedings for final decree in a partition suit involve determining the rights of parties concerning specific property divisions, which necessitates proper notice, unlike certain other types of suits where notice may not be required (!) (!) .
The court found that the lower court erred in not accepting the evidence that the appellants had no notice of the final decree proceedings, based on the lack of documentary proof of such notice being given to them or their lawyers (!) .
The court also noted that even if there was an inspection of the property on a certain date, it did not imply that the appellants had actual notice of the final decree or its contents, as they might have perceived the inspection as part of routine proceedings or in their absence (!) (!) .
Consequently, the court allowed the appeal, set aside the ex parte final decree, and remanded the matter for fresh proceedings, including the appointment of a new commissioner if necessary (!) .
The civil revision was deemed not maintainable and was dismissed as infructuous (!) .
The court awarded costs to the appellants and fixed the hearing fee accordingly (!) .
Please let me know if you need further analysis or specific legal advice based on this case.
Shambhu Prasad Singh, J.
1. Defendants Nos. 6 to 10 of partition suit No. 26 of 1953 of the Court of Subordinate Judge I, Gaya, filed an application in the court below under Order 9, Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code) for setting aside ex parte final decree in that suit. Their application has been dismissed and accordingly they have preferred an appeal as well as an application in revision. This has been done on account of some doubt as to the maintainability of the appeal against the order. The question whether the present order rejecting the application under Order 9, Rule 13 of the Code is appealable under Order 43, Rule 1 (d) or not depends on decision of the question whether Order 9, Rule 13 is applicable or not to proceedings for final decree in a partition suit. In Surendra Kumar Singh V/s. Mukund Lal Sahu, AIR 1949 Pat 68 it was held that Order 9, Rule 13 of the Code could not apply to a proceeding for final decree, as no notice was necessary to be given to the defendant about the plaintiffs application for making a preliminary decree final. This decision of a learned single Judge of this Court was based on an unreported Ben
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