B.P.JHA, J.

1. Defendant No.2 has preferred an appeal under O. XLIII, R.1(d) of the Civil P.C. against an order dated 7th July, 1973, passed by the Subordinate Judge, Sasaram.

2. In the present case the plaintiffs filed a suit for partitioning the suit properties. Plaintiff No.1 and his sons claimed one-fifth share in the suit properties. Ram Prasad Seth (defendant No.1) had three sons, namely, plaintiff No.1 and defendants Nos.2 and 3. Defendant No.7 was the wife of defendant No.1 and mother of plaintiff No.1 and defendants 2 and 3. It appears from the order sheet dated 11th Apr. 1969 of the trial Judge that summons and notices were served in respect of the suit on the defendants. It also appears from the order sheet dated 28th Jan. 1969, that defendant No.1 (the father) and defendant No.7 (the mother of plaintiff No.1 and defendants 2 and 3) appeared through Shri Janki Raman Sharma, Advocate. In spite of service of summons defendant No.2 did not appear to prosecute the suit. The suit was heard ex parte on 20th Nov. 1969. PW Sardar Satya Narain Singh was examined. He heard argument of the plaintiffs on 20th Nov. 1969, and directed to put up the case for orders on 21st Nov. 1969. On 21st Nov. 1969, the ex parte decree was passed.

3. It appears from the order dated 21st Nov, 1969, that Ram Prasad Seth had three sons, namely, the plaintiff No.1 and defendants 2 and 3. It is for this reason that the court granted one- fifth share to plaintiff No.1, one-fifth share to defendant No.1 (father), one-fifth share to defendant No.2 (son of Ram Prasad Seth), one-fifth share to defendant No.3 (another son of Ram Prasad Seth) and one-fifth share to defendant No.7 (wife of defendant No.1 and mother of plaintiff No.1 and defendants 2 and 3). In my opinion, the judgement is perfectly all right and in accordance with law.

4. Though the order was passed on 21st Nov. 1969, defendant No.2 filed a petition on 28th Sept. 1970, under Order IX, R.13 of the Civil P.C. for setting aside the ex parte decree. The application for setting the ex parte decree was dismissed for non-prosecution on 7th July, 1973. Defendant No.2 had filed an application for adjournment on that date. The court below refused to grant the adjournment on the ground that the miscellaneous case was pending since 1970. Hence the application under O. IX, R.13 of the Civil P.C. was rejected. It is against that order, the appellant (defendant No.2) has preferred an appeal before this court.

5. In my opinion justice has been done to the appellant in the ex parte decree passed on 21st November, 1979. Even if the appellant would have contested the case, he would have got one-fifth share in the suit properties which he got in the ex parte decree, on the basis of the ex parte order, a preliminary decree was prepared. Thereafter we have been informed by learned counsel for the parties that a final decree has also been prepared. Against final decree there was a First Appeal, being First Appeal No.429 of 1973 which was preferred by defendant No.2. We have further been informed by learned counsel for the parties that the First Appeal was dismissed for non-prosecution by an order dated 7th Feb., 1979. We have also been informed by learned counsel for the appellant that a restoration petition is pending for disposal.

6. So far as the present appeal is concerned, in my opinion, the application filed under O. IX R.13 of the Civil P.C. was barred by limitation. The ex parte decree was passed on 21st Nov., 1969 and the application under O. IX, R.13 was filed on 28th Sept., 1970. Under Art.123 of the Limitation Act defendant No.2 was required to file an application for setting aside the decree within thirty days from the date of the decree or, where the summons or notice was duly served, then from the date of the knowledge to the applicant in respect of the decree. Admittedly, the application for setting aside the decree was filed after ten months. The applicant was entitled to get the benefit