This Civil Revision has been filed by heirs of defendant No. 1 & 2 against the order dated 23.06.2009 passed by Additional District Judge, Fast Track Court No. IX, Giridih in Miscellaneous Appeal No. 13 of 2006 whereby and whereunder he dismissed the appeal and affirmed the order of Munsif in Miscellaneous Case No. 8 of 2001 dated 4.7.2006.

2. The fact of the case sans unnecessary particulars is that the Plaintiff/respondent/O.P. No. 1 filed Title suit No. 51 of 1989 for declaration of his title against the original defendants 1 to 6 and recovery of possession of the land pertaining to Khata No. 10, Plot No. 2247 area 0.34 dismals and land of Khata No. 17, Plot No. 2248 area 30 dismals and Plot No. 2240 area 19 dismals of village Jamtara, P.S.-Dumri, District-Giridih. It appears that in the said suit after receiving notice , defendant no. 1 and 2 appeared on 19.2.1990 and seek adjournment for filing written statement. It then appears that in spite of adjournment, defendant nos. 1 and 2 did not file written statement, accordingly the learned court below proceeded ex parte against them under Order VIII Rule 10 and an ex parte decree passed against them on 21.4.1998. It then appears that an Execution case filed for execution of the aforesaid decree and in that execution case petitioners/appellants were impleaded because the original defendant no. 1 died on 6.9.1998. It further appears that when petitioners/appellants avoided notice of execution case no. 11 of 1998, the court ordered for publication of notice in the Newspaper, accordingly the notice published in the daily Newspaper. It further appears that thereafter the O.P. No. 1/respondent/plaintiff put in possession of the suit lands. Thereafter petitioners/appellants filed miscellaneous case no. 8 of 2001 for setting aside the ex parte decree against the original defendant nos. 1 and 2 as per the provisions contained under Order IX Rule 13. It further appears that learned munsif, Giridih vide order dated 4.7.2006 after considering the facts of the case rejected the said application. Against the aforesaid order of Munsif, Miscellaneous appeal no. 13 of 2006 filed, which was also dismissed by Additional District Judge, FTC-IX, Giridih considering the facts of the case as well by holding that against an order passed under the provisions of Order VIII Rule 10, an application under Order IX Rule 13 is not maintainable. Aforesaid order impugned in this revision application.

3. It is submitted by Sri V. Shivnath, Senior Advocate that the learned appellate court had committed illegality by holding that the appeal is not maintainable because the original miscellaneous application under Order IX Rule 13 is not maintainable against an order passed under the provisions of Order VIII Rule 10. It is submitted that it has been held by Hon'ble Kerala High Court in A.K.P. Haridas Vs. A. Madhvi Amma [ AIR 1988 Kerla 304] that any decree passed under the provisions of Order VIII Rule 10 for not filing written statement is an ex parte decree and therefore an application under Order IX Rule 13 is maintainable. It is further submitted that defendant no. 1 was suffering from tuberculosis , thus she was not able to attend court till 14.01.1995 when she died. It is further submitted that defendant no. 2 was mentally ill and he is living life of vagabond and because of that he could not contested title suit. It is submitted that the petitioners had shown sufficient cause which prevented defendant nos. 1 and 2 from contesting the case by filing written statement, but the courts below had wrongly rejected the prayer of petitioners for setting aside the ex parte decree. Accordingly, it is submitted that the impugned order cannot be sustained.

4. On the other hand, Sri Ram Subhag Singh, Advocate appearing for opposite party/respondent/ plaintiff submits that Patna High Court in Satyanarayan Sah Vs. Brij Gopal Mundra reported in 1990 (2) BLJR 1301 decided that decree passed under the provision of