Order 9, Rule 13 of the CPC applies to proceedings for final decree in a partition suit and the appellants had shown sufficient cause for their non-appearance in the proceeding.

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 Bench decision in Birendra Prasad Sukul V/s. Srimati Kiran Bala Mitter, Misc. Appeal No. 23 of 1941, disposed of on 2-11-1942 (Pat). Both these decisions were given in relation to a final decree in a mortgage suit and not in a suit for partition. In Mangal Singh V/s. Naga Singh, (1962 BLJR 695), Choudhary, J. distinguished the decision in Surendra Kumar Singhs case, AIR 1949 Pat 68 and made the following observations:

"The principle of law laid down in that case, however, cannot be applicable to a final decree for partition, because in making a final decree for partition the court has to determine the rights of the parties with respect to allotment of particular plots in their respective pathes which could never be possioly done without notice to all the parties concerned."

A preliminary decree in a mortgage suit itself fixes a time for payment of the money and directs that if the money be not paid within that time or further time which may be allowed for the purpose, a final decree will follow. The parties have really nothing to do in the preparation of the final decree. In case the payment is not made, the final decree has to be prepared as a matter of course. This was emphasised by Harries, C. J. in Birendra Prasad Sukuls case, Misc. Appeal 23 of 1941, D/- 2-11-1942 (Pat.), in the following words:-

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"The judgment-debtor well knows whether he has carried out the terms, and, if he has not, the decree will be made final, and there is absolutely no necessity for him to have notice."

Obviously these observations and the rule laid down in the cases of Birendra Prasad Sukul and Surendra Prasad Singh can have no application to a proceeding for final decree in a partition suit. If I may say so with respect, the view taken by Choudhary, J. in Mangal Singhs case 1962 BLJR 695 is correct. Proceeding for final decree in a partition suit is a new proceeding within the meaning of Sec.141 of the Code. Notice of such proceeding must be given to the parties afresh and Order 9, Rule 13 of the Code does apply to such proceedings. It follows from what has been held above that the order of the court below is appealable and the application in revision which was filed as a matter of abundant precaution is infructuous.

2 Before taking up the appeal for consideration on merits, it is necessary to state some facts. In the partition suit which was filed by Smt. Shyama Devi the appellants were the main contestants. They had entered appearance in that suit through Shri Kedar Nath and Shri Akhauri Krishna Prasad, Pleaders. After the preliminary decree was passed in the suit on 31st of August, 1956, they preferred an appeal to this Court against the said decree. This was numbered as First Appeal No. 30 of 1957 and was dismissed. The case of the appellants is that they were always