JUDGMENT

M. M. DAS, J. — This appeal under Order 43 Rule 1-(d) CPC has been preferred against the order refusing to set aside the decree passed in T.S. No.520 of 1987 by the learned 2nd Addition¬al Civil Judge, (Senior Division), Cuttack.

2. T. S. No.520 of 1987 was filed by the predecessor-in-interest of the respondents for partition of the suit property. The said plaintiff having expired during the pendency of the suit, the present respondents were substituted as plaintiffs. The said suit was filed against the predecessor-in-interest of the appellants 1 to 4 and the predecessor-in-interest of the appel¬lants 5 and 6 who have also been substituted during the pendency of the suit.

3. The appellants as defendants filed a joint written statement stating, inter alia, that all the co-sharers of each of the branch are possessing properties in respect of their shares which was already partitioned by metes and bounds and in view of such previous partition, the suit filed by the plaintiff was not maintainable. It is the further case of the appellants that the original defendant, namely, Bhagaban Sethi was looking after the said suit on behalf of the defendants. On 18.6.1992 the said Bhagaban Sethi expired and the appellants 1 to 4 were substituted on 10.8.1992. The written statement was filed during the lifetime of said Bhagaban Sethi after whose death the suit was being looked after by the defendant No.2, Ghana Sethi who is the prede¬cessor-in-interest of the appellants 5 and 6. During the course of proceeding on 6.7.2001, the respondents filed a petition under Order 18 Rule-1 CPC praying therein that the defendants should first begin the evidence as they have pleaded a previous parti¬tion and the said petition was fixed to 30.7.2001 for filing of objection and hearing. Due to serious illness of late Ghana Sethi, he could not file objection on behalf of the defendants and on 8.8.2001 in the absence of the defendants as well as their advocate,the petition filed under Order 18 Rule-1 CPC was allowed by the learned trial Court and the defendants were directed to begin the case by adducing evidence fixing the case to 16.8.2001 for recording of evidence from the side of the defendants. The defendants remained absent from 16.8.2002 to 20.11.2001 and no steps were taken on their behalf. It is pertinent to mention that by orders dated 28.7.1998 and 27.6.2000, all the other defendants were set ex parte, except the appellants-defendants. Though the present appellants were not present even on 30.7.2001 to which date, the case was fixed for filing of objection to the petition under Order 18 Rule-1 CPC filed by the plaintiff, the order sheet discloses that the appellants were not set ex parte at any point of time. The further case of the appellants is that as the said late Ghana Sethi, the original defendant No.2 was looking after the case and he fell seriously ill from fist week of July, 2001 till the second week of February, 2002, he was unable to attend the Court nor give instruction to the other defendants to appear before the Court. Ultimately said Ghana Sethi expired on 15.2.2002. A preliminary decree in the suit was passed on 3.12.2001 pursuant to the judgment dated 20.11.2001. In the judgment, however,it has been stated that the suit is decreed preliminarily on contest against the defendant Nos.1(a), 2, 23, 24 and 25 and ex parte against the other defendants. As the said judgment as well as the decree was not within the knowledge of the appellants, on receiving notice of the final decree proceed¬ing initiated by the plaintiffs, they could come to know about the passing of the preliminary decree. On 2.1.2003, the appel¬lants filed an application under Order 9 Rule-13 CPC for setting aside the preliminary decree, which according to the appellants, was an ex parte decree. An objection was filed to the said Misc. Case and after hearing the same, the learned trial Court rejected the said application as well as the petition filed under Section