Anil Kumar Sinha, J.—The present application has been filed against the order, dated 18.12.2017, passed in Misc. Appeal No. 02 of 2017, by learned Additional District Judge-V, Gopalganj, whereby the learned District appellate court has affirmed the order, dated 13.01.2017, passed in Misc. Case No. 02 of 2017, by learned Sub Judge-I, Gopalganj, whereby the petition filed by the petitioners-defendants, under Order IX Rule 13 of the Code of Civil Procedure has been held to be not maintainable.

2. The father of respondent nos. 1 to 3/plaintiff filed Title Suit No. 557 of 2004 for declaration of right and title over the suit land and also for a declaration that the defendants have no right to interfere in the possession of the plaintiff. The relief for recovery of possession was also prayed in the said suit.

3. The claim of the plaintiff is based upon the sale deeds, dated 02.12.1988, executed by defendant no. 7 in favour of the plaintiff. Defendant nos. 1 to 6, i.e. the petitioners, appeared through vakalatnama on 02.02.2005, and sought time for filing written statement. Defendant Nos. 7 to 9 appeared on 10.02.2005 and filed their written statement supporting the case of the plaintiff and again time was sought on behalf of the defendant nos. 1 to 6 to file written statement. On 04.04.2005, defendant nos. 1 to 6 were debarred from filing written statement and on 24.08.2006, the learned Trial Court decreed the suit directing the defendant nos. 1 to 6 to hand over possession of the suit property to the plaintiff within a period of 30 days. The decree against defendant nos. 1 to 6 was ex-parte and against defendant nos. 7 to 9, it was on contest.

4. The plaintiff-decree holder filed Execution Case No. 26 of 2016 for execution of the decree and summonses were sent to the judgment debtors-petitioners in the execution case. According to the petitioners, only after summonses were received by them, they came to know that ex-parte judgment and decree has been passed against them.

5. The petitioners thereafter filed Misc. Case No. 02 of 2017, under Order IX Rule 13 of the Code of Civil Procedure for setting aide ex-parte judgment and decree, inter alia, on the grounds that summonses were not served upon them and after inspection of the suit record, the petitioners came to know that vakalatnama was filed on their behalf by one Vijay Kumar Prasad, Advocate; whereas, according to the petitioners, they neither executed any vakalatnama nor authorized any Advocate to contest the suit on their behalf.

6. The miscellaneous case (Misc. Case No. 02 of 2017) filed by the petitioners for setting aside the ex-parte judgment and decree has been dismissed by learned Sub Judge-I, Gopalganj, vide order, dated 13.01.2017, at the stage of admission, holding that the petition, under Order IX Rule 13 of the Code of Civil Procedure, is not maintainable. This was on the ground that the petitioners had filed vakalatnama and even after giving sufficient opportunity, they did not file written statement despite having knowledge of the suit.

7. Against the order, dated 13.01.2017, passed in Misc. Case No. 02 of 2017, the petitioners filed Misc. Appeal No. 02 of 2017, which has also been dismissed by learned Additional District Judge-V, Gopalganj, vide order, dated 18.12.2017, affirming the order, dated 13.01.2017, passed in Misc. Case No. 02 of 2017, by learned Sub Judge-I, Gopalganj, holding that the miscellaneous appeal filed by the petitioners is not maintainable.

8. Learned Counsel for the petitioners argued that for the sake of argument, if it is presumed that after filing vakalatnama, the petitioners had left pairvi in the suit, leading to passing of the ex-parte judgment and decree, even in that situation also, the petition, under Order IX Rule 13 of the Code of Civil Procedure, is maintainable. He relied upon the provisions of Order IX Rule 6 (1) (a) of the Code of Civil Procedure and submits that Order IX Rule 6 (1) (a) of the Code of Civil Procedure talks about fixi