The main legal point established in the judgment is the obligation of the court to issue notice to all parties in the final decree proceedings and the applicability of S.151 CPC in setting aside a final decree passed without notice.

1. A few points of some interest and importance have been raised in this revision petition.

2. The plaintiff sued for a declaration of his right to 5 out of 24 shares in the plaint properties and for partition and separate possession of such share. The other sharers are the defendants in the suit. All but one remained ex parte in the suit and a preliminary decree was passed after considering the contentions raised by the 3rd defendant. It has been mentioned at the bar that the preliminary decree was challenged in appeal and in second appeal and eventually confirmed. In the meanwhile, a final decree appears to have been passed, and the 2nd defendant, claiming to be aggrieved by the final decree, applied for an order under 0.9 R.13 CPC. to set it aside. He alleged that no notice had been served on him of the application for passing the final decree and that he came to know about the specific final decree that had been passed only on 2 81966 i. e. the day previous to his application under 0.9 R.13 CPC. His application was dismissed by both the Courts below and so he has come up in revision.

3. Admittedly, notice was not issued on the application for passing the final decree and so we have to take it that no notice was served on the 2nd defendant in the final decree proceedings although he had been served with summons when the suit was instituted and had chosen to remain ex parte allowing a preliminary decree to be passed. Obviously, he cannot be heard to challenge any thing that has been decided in the preliminary decree and, indeed, the revision petitioner agrees that he is bound by the preliminary decree. His grievance is that he should have been given notice when an application for the passing of a final decree was made and that not having been done the decree passed thereon was violative of the rules of natural justice and it must be deemed as if he had not been duly served with summons for purposes of Art.123 (old Art.164) of the Limitation Act.

4. The contentions of the respondent on the other hand are that summons had already been duly served on the 2nd defendant and that he had chosen to remain ex parte and so he could not get the ex parte decree set aside on an application filed more than 30 days after the passing of the decree. She also contests the ground that notice is necessary at the final decree stage to defendants who have been ex parte in the suit. Even assuming such notice were necessary, counsel for the respondent contends that the language of Art.164 of the Limitation Act (Art. 123 of the present Act) does not admit of a different terminus a quo in the case of a final decree in a partition suit and so for the purpose of limitation we have to reckon 30 days from the date of the decree and since the present application is long after that, the petition is barred by limitation.

5. A contention has been taken by the petitioner that in any view if 0.9 R.13 cannot save him, S.151 CPC. must be invoked in his favour and if that were permissible no question of limitation can possibly arise. Where the Code does not expressly provide for a situation the Court can give redress if the ends of justice demand it by exercising its inherent powers under S.151 CPC. Counsel for the respondent, however, contends that since there is provision in 0.9 R.13 CPC. for setting aside ex parte decrees, S.151 CPC. cannot come into pay at all. A further point which has also been debated at the bar must be mentioned here If it was the duty of the Court to issue notice to parties at the final decree stage the omission to do so is a default of the Court and no party should be prejudiced by an act of the Court. If there is such injury inflicted, the Court has the power and, indeed, the duty to remedy the wrong and on this basis also the ex parte final decree must be set aside. Counsel for the respondent, of course, pleads that the proposition that an act of Court cannot be allowed to harm a party may be good, but does not apply to the fa