JITENDRA MOHAN SHARMA, J.:–The instant miscellaneous appeal has been filed by the appellants for setting aside the order dated 27.02.1991 passed in Miscellaneous Case No. 69 of 1988 whereby and whereunder the learned Sub-Judge I, Patna dismissed the miscellaneous case on the ground that the appellants having fully knowledge of Title Partition Suit No. 134 of 19789 allowed the suit to be decreed ex-parte and further holding that miscellaneous case was hopelessly time barred.

2. The First Appeal No. 425 of 1991 has been filed by the appellants against the ex-parte order, dated 13.05.1982, passed in Title Suit No. 134 of 1979, whereby and whereunder the suit was decreed ex-parte and the plaintiff was declared entitle for 1/6th share.

3. To appreciate the facts it is necessary to deal with the factual matrix of Title Partition Suit No. 134 of 1979 which was filed by the plaintiff for carving out his 1/6th share in the suit property on 21.04.1979 and it was ordered to put up the same with Shiresthedar Report. Some defect was pointed out by the Shiresthedar and for removal, 2-3 dates were given to the plaintiff and, on 5.11.1979, after removal of defect, the said suit was admitted and summons were directed to be issued. On 19.12.1979 plaintiff filed attendance and date was given 30.01.1980 to issue summons and again vide order, dated 30.01.1980, the office was directed to issue summons on defendants which was issued on 01.02.1980 through Nazarat, thereafter, on behalf of plaintiff petition to issue interim injunction was filed and on that petition ad interim injunction was issued against defendant nos. 1 to 9 an 10 restraining them from disposing 1/8th share of the plaintiff in each of the suit plots and show cause within 7 days from the receipt of the notice as to why the said order should not be made absolute. The plaintiff was directed to file requisite for

issuance of notice and injunction order at once. This order was passed on 11.02.1980, thereafter, amendment petition was filed on behalf of plaintiff which was allowed. Show cause notice was also issued through Nazarat and in order, dated 20.03.1980, it has been mentioned that on defendant no. 5, 11, 16 and 18 summons have been served as they have received summons themselves whereas on defendant no. 17 no summons was served and on rest defendants it has been served on refusal and accordingly, direction was given to file affidavit in support of the service of summons and date was given on 30.03.1980 but on 30.03.1980 being Sunday, the file was put up on 31.3.1980 and on 31.3.1980 plaintiff filed an application under Order 5 Rule 20 read with Section 151 of the C.P.C. for issuance of summons on defendants through Gazette/paper publication whereupon the learned court below passed an order directing the plaintiff to take steps for publication of summons in Gazette by 29.04.1980. Thereafter, on several dates the plaintiff did not comply the court?s order and on 16.12.1980, draft of gazette notice was filed by the plaintiff. On 26.03.1981 the plaintiff furnished the copy of publication and the said Title Partition Suit was fixed for ex-party hearing on 09.04.981.

4. On 12.05.1982 ex-parte hearing was completed and the record was fixed for ex-parte order on 13.05.1982 and on 13.05.1982 ex-parte order was passed decreeing the suit.

5. The applicant Lal Babu Singh and others filed Misc. Case No. 69 of 1988 on 21.07.1988 under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as ‘of the Code’) for setting aside the ex-parte decree, dated 13.05.1982, passed in Title Partition Suit No. 134 of 1979 and to restore the suit to its original file stating therein that a registered notice dated 23.06.1988 was received, issued by Sri Prem Kumar Verma, Advocate Commissioner, intimating therein that he has been appointed as Advocate Commissioner by the Court of Sub-Judge-I, Patna for local inspection and to carve out a separate takhta. Accordingly, they appeared before the Advocat

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