JYOTI SARAN, J.:–This appeal under Order XLIII rule 1(d) of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) is directed against the order dated 20.11.1995 passed by the learned Sub-Judge 1st, Patna in Misc. Case No.62 of 1993, whereby the miscellaneous case filed by the appellant under Order-IX rule 13 read with section 151 of the Code has been dismissed.

2. Facts of the case briefly stated leading to the miscellaneous case is that a suit bearing T.S. No.36 of 1991 was filed by the plaintiff respondent nos.1 and 2 as against the respondent nos.3 to 6, who were impleaded as defendant nos.1 to 4 and the appellant herein impleaded as defendant no.5, seeking to declare the sale deed dated 26/27.6.1987 executed by the defendant no.5-appellant in favour of defendants 1st set who are respondents 2nd set herein as illegal, void, inoperative and not binding on the plaintiffs. The suit was admitted and summons were issued. As per the order impugned, the defendants did not choose to appear and hence it led to ex-parte judgment and decree dated 10.9.1993 passed in Title Suit No.36 of 1991. The defendants upon gathering knowledge about the ex-parte decree filed the application in question giving rise to Misc. Case No.62 of 1993 under Order IX rule 13 read with section 151 of the Code and which has been dismissed by the judgment and order impugned dated 20.11.1995 and hence this appeal.

3. I have heard Mr. Shashi Shekhar Dwivedi, learned senior counsel appearing on behalf of the appellant, Mr.Sanjay Kumar Ojha on behalf of the some of the substituted heirs of deceased plaintiff- respondent no.2A being the wife and daughter of deceased plaintiff no.2 and Mr. Kamal Nayan Choubey, learned senior counsel appearing for another set of substituted heir of deceased respondent no.2 exercising her right of substitution on the basis of a power of attorney.

4. This Court in its order passed on 22.11.2013 has already clarified that it has not delved into the issue as to who would be the rightful legal representative of deceased respondent no.2A and the prayer for substitution is being allowed only for the purpose of pursuing the present appeal with a view to its disposal. It has further been clarified that the contesting parties can take recourse to appropriate proceeding before an appropriate forum for deciding this issue.

5. Adverting back to the matter in issue it has been the contention of Mr. Dwivedi in a very precise manner that in absence of satisfaction of service of notice in the light of statutory provisions underlying Order-V more particularly rules 17 to 20 of the Code it undisputedly reflects non-service of valid notice on the appellants and in which view of the matter the judgment and decree impugned as well as the ex-parte decree cannot be upheld. With reference to the order-sheet of the title suit which forms part of the lower court records summoned in the present appeal, it was submitted by Mr. Dwivedi that the suit was filed on 15.1.1991 and under the orders of the court dated 1.5.1991 requisites etc. were to be filed under both processes. Again under the order of the court on 26.9.1991 summons were issued. The order sheet dated 28.11.1991/28.2.1991 shows that whereas notice on defendant nos.1 to 4 under both processes remained unserved, the service of notice on defendant no.5 who is the appellant herein and the defendant no.6, was awaited. It is again with reference to the order dated 8.5.1992 stated that the notices on defendant nos.1 to 4 and 6 were found validly served by the court while the defendant no.5 remained unserved and this position continued thereafter from 3.6.1992 until 11.5.1993. It is stated by Mr. Dwiedi that on the very next date, i.e. on 24.5.1993, the trial court recorded valid service of notice on all the defendants even in absence of any service report regarding defendant no.5. It is stated that thereafter the ex-parte decree was passed on 10.9.1993 and being aggrieved wherefrom, all t