R. Narayana Pisharadi, J.

Is the decree passed in the suit, in which the appellant is the first defendant, an ex parte decree or not? This is the bone of contention between the parties to be decided in this appeal.

2. The appellant is the first defendant in the suit O.S.No.129 of 2009 on the file of the Subordinate Judge's Court, Kozhikode. The respondents are the plaintiffs and the other defendants in the suit.

3. The suit was for partition of movable as well as immovable properties. On 06.06.2017, the lower court passed a preliminary decree for partition of the plaint schedule properties. The appellant then filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') for setting aside the decree in the suit on the basis that it is an ex parte decree passed against her. The lower court dismissed the aforesaid application stating that the decree passed in the suit is not an ex parte decree. This appeal is filed challenging the aforesaid order passed by the lower court.

4. The suit was instituted in the year 2009. The trial of the suit got delayed for various reasons. In this context it is relevant to note that when the suit came up for trial on 06.01.2016, the appellant was set ex parte as her counsel reported no instructions. Then the evidence of the plaintiffs was adduced. As the other defendants in the suit had already been set ex parte, the suit was decreed ex parte against the defendants on 18.01.2016. Subsequently, on application made by the appellant, the ex parte decree passed in the suit was set aside. Thereafter, after several adjournments, the evidence of the plaintiffs in the suit was closed on 01.12.2016 and the case was posted to 05.12.2016 for the evidence of the defendants. However, the appellant then filed an application for amendment of the written statement and it was dismissed by the trial court. The appellant challenged that order before this Court by filing O.P(C) No. 329 of 2017. This Court dismissed the Original Petition. Thereafter, on 03.03.2017, the trial court posted the suit for the evidence of the defendants.

5. The following entries in the proceedings sheet of the suit reveal what happened thereafter during the trial of the suit.

Date Entry in the proceedings sheet

03/03/17 As per the order dated 14.02.2017, Honourable High Court disposed of O.P.(C) No.329 of 2017. For defendants' evidence to 16.03.2017

16/03/17 For defendants' evidence counsel prays for time. 23.03.2017

23/03/17 For defendants' evidence NFT. 25.03.2017

25/03/17 For defendants' evidence. 27.03.2017

27/03/17 For defendants' evidence counsel prays for time. Last chance 01.04.2017

01/04/17 No evidence adduced by the defendants. Evidence closed. For hearing 04.04.2017.

04/04/17 Defendants filed I.A.No.992 of 2017. Allowed. For hearing 23.05.2017

23/05/17 Heard. For judgment 06/06/2017.

06/06/17 Suit is decreed with cost. Preliminary decree is passed. Suit adjourned sine die.

6. The appellant had filed the application I.A.No.992 of 2017 for adjourning the trial of the suit to a date after the summer vacation. In the affidavit filed along with that application, the appellant had stated that she had filed S.L.P. No. 8110 of 2017 before the Hon'ble Supreme Court and that petition would come up for hearing before the Apex Court before 20.04.2017. On 04.04.2017, the trial court allowed I.A.No.992 of 2017 and adjourned the trial of the suit to 23.05.2017. In this context it is to be noted that the prayer made in the application I.A.No.992 of 2017 filed by the appellant was to adjourn the trial of the suit, to the date on which the court re-opens after the summer vacation, for the evidence on her side. On 23.05.2017, the appellant did not adduce any evidence. The trial court then heard arguments of the counsel for the plaintiffs as well as the defendants and adjourned the suit to 06.06.2017 for judgment. The judgment in the suit was pronounced on 06.06.2017.

7. We have heard the learned c