JUDGMENT

A. PASAYAT, J. — This is an application questioning the correctness of the order passed by the learned Sub ordinate Judge, Puri, holding that the petitioner’s application to set aside the order setting them ex parte and for acceptance of the written statement filed by them was not maintainable.

2. A brief advertance to the factual antecedents is neces¬sary to put the controversy in its proper perspective.

The petitioners are defendants 1 to 3 in a suit filed by present opposite party No. 1. The present opposite party Nos. 2 to 5 were defendants 4 to 7 in the suit. The suit was filed on 2.1.1990 and the present petitioners were held to have refused the summons offered to them and on 25.1.1990 the matter was adjourned to 30.1.1990 for proving service of notice. On 3.2.1990, the petitioners 1 and 2 appeared and prayed for time to file written statement. The matter was adjourned from time to time to enable the plaintiff to prove service as against defend¬ant No. 3, the present petitioner No. 3. On 19.6.1990 the peti¬tioners 1 and 2 filed an application for time to file written statement. Time was granted till 28.7.1990 as a last chance, and the plaintiff was required to prove the service on defendant No. 3. On 28.7.1990 time was again asked for to file the written statement which was granted till 17.8.1990 indicating the same to be last chance. The plaintiff was also required to prove service as against defendants 4 to 7. On 17.8.1990, as the order-sheet reveals, the petitioners did not file their written statement and did not take steps, and were set ex parte. Since service against defendants 4 to 7 was not proved, the matter was adjourned to 27.8.1990 when the plaintiff was to prove service against defend¬ants 4 to 7. On 21.8.1990 a petition to advance the date was filed by the plaintiff with a further petition to accept the service affidavit filed along with the petition. The learned Sub ordinate Judge considered the petitions, and held the serv¬ice against defendants 4 to 7 to be sufficient. He further held that defendants 4 to 7 were absent on repeated calls and hence they were set ex parte. The matter was further directed to be put up on the date fixed for ex parte evidence by way of affidavit evidence. On 22.8.1990 another petition was filed by the plain¬tiff to advance the date and to take up the case on that day. It appears that the plaintiff filed affidavits and prayed for ac¬ceptance thereof as evidence. The matter was directed to be put up on the date fixed for their consideration. On 27.8.1990 the plaintiff filed hazira. The matter was posted to 6.9.1990 for ex parte judgment on the ground that all the defendants had been set aside, and the plaintiff had filed his ex parte evidence by way of affidavit which was accepted. On 29.8.1990, the petitioners filed an application to advance the date and to set aside the order setting them ex parte. The matter was directed to be put up on the date fixed. On 31.8.1990 a further petition supported by affidavit was filed to recall the orders dated 17.8.1990, 21.8.1990, 22.8.1990 and 27.8.1990 and to accept the written statement.

The matter was directed to be placed on the date fixed, after service of the petition on the plaintiff. On 6.9.1990, the matter was posted to 13.9.1990 for hearing of the petitions filed to recall the previous orders setting them ex parte. On 13.9.1990 hearing on the said petition was concluded, and the case was posted to 14.9.1990 for delivery of orders. By the impugned order dated 14.9.1990 the learned Subordinate Judge held that the petition was not maintainable and therefore, was rejected.

3. The synoptical resumption of orders as passed shows cavalier fashion in which the proceeding was conducted. From the records I find that defendant No. 3 had already entered appear¬ance on 3.2.1990; yet orders were passed from time to time to prove service against the said defendant, for example, orders passed on 3.5.1990 and 19.6.1990. Defendants 4 to 7