1. This is an application under S.115(1) of the Civil P.C. (hereinafter referred to as the Code) against the order dated 4-2-1977 passed by Shri S.N. Sinha, Second Additional Subordinate Judge, Dhanbad, in Misc. case No. 8 of 1976 under O.IX. R.13 of the Code setting aside the decree dated 27-7-1976 passed in title suit No. 39 of 1973.

2. The facts leading to the present application are that the plaintiff had filed title suit No. 39 of 1973 against defendants Nos. 1 and 2. In the said suit, defendant No. 1 never appeared, But defendant No. 2 had appeared and had filed his written statement, 14-7-1976 was an adjourned date for hearing, when the plaintiff and defendant No. 2 filed their respective hazris and the suit was taken up for hearing. On that date one witness on behalf of the plaintiff was examined who was also cross-examined on behalf of the defendant No. 2 and thereafter the said witness, who had also proved certain documents, was discharged before lunch recess. When however, the further hearing of the suit was taken after the lunch recess, neither the lawyer for the defendant No. 2 nor any person an behalf of the defendant No. 2 was present and an unstamped petitio