JUDGMENT

S. B. SINHA, J. — Leave granted.

2. The remedies available to a defendant in the event of an ex parte decree being passed against him in terms of Order 9, Rule 13 of the Code of Civil Procedure (Code) and the extent and limitation thereof is in question before us in this appeal which arises out of a judgment and order dated 19.12.2002 passed by the High Court of Madhya Pradesh at Jabalpur in First Appeal No.109 of 1986.

3. The fact of the matter relevant for the purpose of this appeal is as under :

One Shri N. N. Mukherjee was the owner of the premises in suit. He died leaving behind his wife Smt. Suchorita Mukherjee, (original defendant No.1), son Shri P.P. Mukherjee, (original plaintiff) and daughter Smt. Archana Kumar, (original defendant No.2). The family is said to be governed by Dayabhag School of Hindu Law. The original plaintiff filed a suit for partition in the year 1976. The original defendants filed their written state¬ments. Respondent No.2 herein, Surender Nath Kumar who is hus¬band of Smt. Archana Kumar, Respondent No.1 herein also filed a written statement and counterclaim by setting up a plea of mort¬gage by deposit of title deeds in respect of property in suit said to have been created by his mother-in-law (original defendant No.1).

4. Smt. Suchorita Mukherjee died on 15.9.1984 whereupon Respondent No.1 herein was transposed as defendant No.1; whereas Respondent No.2 was transposed as defendant No.2 therein. In the suit, the defendant No.1 did not file any document. Respondent No.2 also did not file any document in support of his purported counter claim.

5. Having regard to the rival contentions raised in the pleadings of the parties, the following issues were framed :

“1(a) Whether partition of property owned by late Shri N. N. Mukherjee had taken place during his life time ?

(b) If so, what property was available for partition ?

(c) What were the shares allotted to the Plaintiff and the defendant No.1 in the said partition ?

(d) Whether the Plaintiff had separated from his father during his life time and was in separate possession of his share in the property ?

2. Whether the Plaintiff is entitled to 1/2 share and sepa¬rate possession of his share in the property described in para 3 of the plaint ?

3. Whether the plaintiff is entitled to claim mesne profits for the income derived by the defendant No.1 from the share in the property ? If so, at what rate and to what sum ?

4. Whether the claim in suit is barred by limitation?

5. Whether the decision in Civil Suit No.63-A of 1972 decid¬ed on 22.11.75 by IInd Civil Judge, Class II, Jabalpur will operate as res judicata in the present case ?

(a) Whether the suit is not maintainable as no relief has been sought against defendant No.27 ?

(b) Whether at the request of Defendant No.1, Defendant No.3 spent Rs.21000/- till 31.10.74 on construction and alteration of the suit property and the interest as on 31.10.74 came to Rs.10,000.00 ?

(c) Whether in order to secure the above amount defendant No.1 deposited the title deeds of the suit property with defendant No.2 and created a mortgage by deposit of title deeds in favour of defendant No.3 and the suit property stands mortgaged with the defendant No.3 ?

(d) Whether defendant No.3 further spent Rs.9500/- in the year 1976, 1977 and 1980 and defendant No.2 spent Rs. 10500.00 ?

(e) Whether defendant No.3 is entitled to get declaration shown as in para 6(A) (B) (C) of the written statement of defendant No.3 ?

(f) Whether the mother of defendant No.2 had made will in favour of defendant No.2 and thus, after the death of mother defendant No.2 became absolute owner and plaintiff has no right ?

(g) Whether the plaintiff had already separated in the year 1951 and thus he has no right over the suit property ?

6. Relief & Costs ?”

6. An additional issue was framed on 13.6.1985 and the case was fixed for evidence on 3.8.1985. On 3.8.1985 nobody was pre¬sent on behalf of the defendant but the plaintiff’s advocate was pres