Appearance in a pauper application is not equivalent to appearance in the suit itself, and therefore, service of summons is still required in such cases.

P. N. MOOKERJEE, J. :- This Rule arises out of an application for setting aside, what, in truth and substance, was an ex parte decree, passed against the applicant who is the contesting opposite party before us. The application was made under the usual provision of O. IX, R. 13 of C. P. C. The applicant was defendant No. 3 in the suit for partition, in which the aforesaid ex parte decree was passed. The applicants case was that no summons of the suit had been served upon him and that he came to know of the above ex parte decree within the relevant period, namely, thirty days of the date of presentation of the aforesaid application for timely presentation of the said application for purpose of limitation.

2. The application was contested by the present petitioner who was the contesting defendant No. 1 in the original suit, but he had as much interest in the decree for partition as such defendant as the plaintiff herself and, accordingly, he was certainly entitled to oppose the above applicants aforesaid application. 3. The case of the present petitioner was that, in the circumstances, stated in his petition of objection, the applicant, who is the contesting opposite party before us, as stated hereinbefore, must be held to have had knowledge of the suit and knowledge of the decree also at all material times and, certainly, long before thirty days of the filing of the aforesaid application under O. IX, R. 13 of the Code of Civil Procedure.

4. In support of their respective cases, the parties examined themselves and also some witnesses.

5. The learned Subordinate Judge, on an examination of the oral evidence before him, came to the conclusion that, in the circumstances of this case, the application under O. IX, R. 13 should be allowed on terms as to payment of costs by the applicant as and by way of condition precedent and the ex parte decree should be set aside and the suit in question should be re-heard after restoration, even though the application under O. IX, R. 13 of the Code of Civil Procedure had been filed a long time, viz., roughly, a period of seven years, after passing of the aforesaid ex parte decree.

6. The circumstances are rather unusual, and prima facie against the applicant-opposite party and this has not been overlooked by the learned Subordinate Judge, but the difficulty of the present petitioner is that this is a Rule proceeding under S. 115 of the Code of Civil Procedure and if the learned Subordinate Judge has accepted the evidence of the opposite party, however wrong that acceptance may be, depending, as it does, on the assessment of the oral evidence before the court and being or involving simply a question of believing or disbelieving a particular witness, it is not permissible for this court to interfere under S. 115 of the Code of Civil Procedure. Mr. Dutt who appeared for the petitioner, realised this difficulty, but he attempted to get rid of the same by raising an interesting question, namely, that, in the present case, no summons of the suit, of the non-service whereof complaint is made by the applicant-opposite party, need have been served in law. The submission is made in the particular facts and circumstances of this case which are as follows :

The suit in question, namely, the partition suit, was originally brought in forma pauperis, that is, by filing an application for instituting and continuing the suit as a pauper. That application was registered as Misc. Case No. 19/1947. The application was eventually allowed and the proceeding, in accordance with and as required by law, was registered as T. S. 69/1947. In the original pauper proceeding namely, Misc. Case No. 19/1947, the present contesting opposite party who was defendant No. 3 in the relative partition suit and opposite party No. 3 in the said pauper application, had entered appearance and consented to the plaintiffs being allowed to sue as a pauper, the plaintiff being, as it appears from the evidence, his wife after her remarriage