ORDER :

1. The petitioners by way of this writ petition challenges the order passed by the Board of Revenue dated 11.12.2018 whereby the revision petition filed by the petitioners against the order passed by the SDO dated 06.02.2018 has been rejected.

2. Learned counsel for the petitioners submits that the SDO has wrongfully allowed the application under Order IX Rule 13 CPC moved by the respondents on the ground that before passing of an order under Order IX Rule 13 CPC, the application under Section 5 ought to have been decided.

3. Further it is submitted that the reasons for setting aside the ex-parte decree were also not made out. Learned counsel submits that since the application was moved after eight (08) months of the earlier decree passed by the SDO and an application under Section 5 was also moved, the SDO ought to have passed separately order on the application under Section 5 and thereafter, could have dealt with the application under Order IX Rule 13 CPC. It is further submitted that the contention raised before the Board has been wrongfully examined and the Board has fallen in error in holding that the application under Section 5 would be deemed to have been rejected.

4. Learned counsel also submits that the reasons for allowing the application under Order IX Rule 13 CPC which has been accepted by the Board were erroneous, once the notices were published in the daily newspapers, service would be deemed to have been effected on the respondents and, therefore, the order could not have been passed of setting aside the ex-parte decree.

5. Learned counsel relies upon the judgments reported in 1998 DNJ [Raj.] 767 : State of Rajasthan & Ors. Vs. Smt. Usha Sahini & Anr. and 2009 DNJ (SC) 141 : State of West Bengal & Ors. Vs. Somdeb Bandyopadhayay & Ors. to submit that this Court has laid down the law that if the application for condonation of delay was not disposed of and if the case has been finally decided, the order is required to be set aside and the case is required to be sent back for decision on the application for condonation of delay.

6. I have heard learned counsel for the petitioners at length and examined the order passed by the Board of Revenue. The contentions as noticed above were also raised before the Board of Revenue and the judgments cited before this Court were also cited before the Board of Revenue.

7. The Board of Revenue, after considering the law as cited, found that in the case at hand, the ex-parte proceedings were taken on 10.08.2016 and thereafter, ex-parte decree was passed on 20.02.2017. Thereafter, an application was moved to set aside the said ex-parte decree on the ground that the applicant was out of country and in support thereof, he has placed related documents and the Board was satisfied that he was thus prevented to put up his defence and he had no knowledge of the case filed by the petitioners.

8. The Board of Revenue has also noticed that the provisions under Order 5 Rule 9(3) were not followed and the notices were not sent by registered post or presented and directly the procedure under Order 5 Rule 20 CPC was adopted for publication of the notices in the newspapers.

9. Taking into consideration that an invalid procedure was adopted by the concerned SDO while passing the ex-parte decree, it reached to the conclusion that the proceedings were ab-initio, unjustified and illegal. Accordingly, it had reached to this conclusion that the requirement of separately passing an order on the application under Section 5 in such circumstances by the SDO was not necessary while he was hearing application under Order IX Rule 13 CPC and once the arguments were heard on the application under Order IX Rule 13 CPC and an order has been passed by the SDO concerned, it would be also understood that the delay has been condoned and treated as a composite order.

10. Since the order-sheets depicts all the stages of the case on the application under Order IX Rule 13 CPC, the Board has also found that the order passed