Arun Kumar Jha, J.—The present petition has been filed by the petitioners under Article 227 of the Constitution of India for quashing the order dated 01.09.2016 passed by the learned Additional District Judge-X, Patna in Misc. Appeal No.100/2011 whereby and whereunder the learned first appellate court allowed the appeal and set aside the order dated 14.09.2011 passed by the learned Sub Judge-IV, Patna in Misc. Case No. 19 of 2001/23 of 2008.

2. The conspectus of the case, as it emerges from the records, is that the petitioners filed Title Suit No. 367/1997 in the court of learned Sub Judge-1, Patna seeking relief for grant of decree for specific performance of contract for sale in respect of the suit land on the basis of an agreement of sale (Baibeyana) dated 01.04.1997 executed by the original defendant/ respondent- Kashi Rai. The present respondents are the sons of original respondent. It further transpires that the agreement of sale (Baibeyana) dated 01.04.1997 was executed by Kanshi Rai as he was in urgent need of money and he offered to sale the suit land and the plaintiffs came forward to purchase the suit land for consideration of Rs.58,000/-. The earnest money of Rs. 41,000/- was paid. Thereafter, further payment of Rs.17,000/- was made to Kanshi Rai. The petitioners approached the father of the respondents to execute and register the sale deed. But, it appears, the sale deed was never executed. Legal notice was also issued, but the same was refused and, thereafter, Title Suit No. 367/1997 was filed for specific performance of contract for sale. It further appears notices were issued on the original defendant, but he refused to accept the notice. It also appears the petitioners filed their affidavit in support of service of summons and the matter was fixed for ex-parte hearing and the suit was decreed ex-parte on 05.08.1999. Pursuant to the decree passed in Title Suit No. 367/1997, the petitioners filed Execution Case No. 24/1999 in which again summons were issued and served upon defendant/respondent, but he did not appear and his son Gopi Chand Rai appeared on 29.05.2001 and filed some application and, thereafter, left pairvi in the case. It further transpires that on 26.06.2001, the original defendant/respondent filed a petition under Order IX, Rule 13 of the Code of Civil Procedure seeking relief to set aside the ex-parte decree dated 05.08.1999 and, for the said purpose, Misc. Case No. 19/2007 was registered. It further transpires that the miscellaneous case proceeded and evidence of both sides was recorded and the learned Sub Judge-IV, Patna vide order dated 14.09.2011 dismissed the miscellaneous case holding that the defendant was aware about pendency of Title Suit No. 367/1997 and Execution Case No. 24/1999 and has deliberately avoided appearance in that case. The original defendant/respondent, being aggrieved by the aforesaid order of the learned Sub Judge, preferred Misc. Appeal No. 100/2011 before the learned District Judge, Patna. The aforesaid appeal was heard by the learned Additional Sessions Judge-X, Patna and vide order dated 01.09.2016, the appeal was allowed and the order dated 14.09.2011 was set aside. The said order is under challenge before this Court.

3. The learned counsel for the petitioners submitted that the order impugned is not sustainable. The learned appellate court did not consider the fact that it is the admitted case of the respondents that the original defendant was having knowledge of the decree passed on 05.08.1999 and he filed a petition on 21.06.2001. The learned appellate court committed patent illegality in considering the question with regard to service of notice upon defendant/respondent since the same stood proved with the evidence of the process server as well as Nazir of the Civil Court. The learned appellate court shifted the burden of establishing the service of notice upon plaintiffs/petitioner in the miscellaneous case filed by the defendant, whereas it was incumbent upon