ORDER :

1. The instant petition under Article 227 of the Constitution of India directed is against the order dated 16.07.2022 passed by the Additional Munsif-VIII, Giridih in Civil Misc. Case No. 04 of 2020, whereby and whereunder, the petition filed under Order IX Rule 13 of CPC praying therein to set aside the ex-parte decree dated 17.06.1993 passed in Partition Suit No. 204 of 1991 has been sought to be quashed.

2. The aforesaid order dated 16.07.2022 has been challenged on the ground that the petition filed under Order IX Rule 13 of CPC is after the lapse of the period of 27 years and although the said petition was coupled with the application under Section 5 of the Limitation Act but the learned Court while allowing has issued notice as to why the decree dated 17.06.1993 passed in Partition Suit No. 204 of 1991 be not quashed and set aside by condoning the delay but without issuing notice on the issue of limitation.

3. The brief facts of the case as per the pleading made in the petition which requires to be enumerated, reads as under:

The original plaintiff, namely, Devi Mahto, filed a Partition Suit No.204 of 1991 against the defendants in the court of Munsif, Giridih praying therein a decree claiming partition of 8 annas share in the suit property fully described in the schedule to the plaint and in the said case, summons were issued to the defendants and the defendants refused to receive and same and affidavit of process server was filed on 29.09.1992 and the service of notice upon the defendants were held proper and valid.

The learned trial court, after considering the material on the record, decree the suit and accordingly preliminary decree was prepared on 09.07.1993 and final decree was also made on 04.10.2019 and the plaintiffs filed execution case on 02.02.2021 for execution of the final decree passed in Partition Suit No. 204 of 1991.

Thereafter, the defendants filed Misc. Case No. 04 of 2020 before the Civil Judge, Junior Division, Giridih under Order IX Rule 13 of CPC along with a petition under Section 5 of the Limitation Act, 1963 for setting aside the ex-parte preliminary decree and all subsequent orders on the ground of non-service of summons.

It is the case of the petitioner that no notice was issued to the petitioner in Misc. Case and the learned court without hearing the plaintiffs has passed the order for condonation of delay in filing the misc. case, the impugned order herein.

4. It appears from the factual aspect that a partition suit was filed in the year 1991 being Partition Suit No. 204 of 1991. Decree was passed on 17.06.1993 said to be preliminary. Thereafter, final decree was passed on 04.10.2019.

It is the case of the applicants who have filed petition under Order IX Rule 13 of CPC, the defendant to the suit that the day when the process was executing the final decree dated 04.10.2019 has been taken recourse, then the defendant came to know about the preliminary decree passed in the year 1993 which according to the defendants, the respondents herein, that the said decree was ex-parte, hence, the petition was filed under Order IX Rule 13 of CPC for setting aside the ex-parte decree dated 17.06.1993 passed in Partition Suit No. 204 of 1991.

It further appears that the petition under Order IX Rule 13 of CPC was filed along with application under Section 5 of the Limitation Act for seeking prayer therein to condone the delay of 27 years in filing the aforesaid petition under Order IX Rule 13 of CPC.

The plaintiff, the petitioner to this petition, is having grievance that the executing court has issued notice after condoning the delay of 27 years but without issuing notice upon the issue of limitation as would appear from the order dated 16.07.2022, hence, petition under Article 227 of the Constitution of India assailing the said order.

5. Mr. Sandeep Verma, learned counsel for the petitioner has taken the ground that the issue of limitation since is the mixed question of law and fact, hence, a notice was req