JUDGMENT :

D. Dash, J.

1. This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Cuttack in RFA No. 143 of 2007 affirming the final decree passed by the learned Second Addl. Civil Judge (Sr. Divn.), Cuttack in T.S. No. 424 of 1993. Facts necessary for the purpose are stated hereunder:--

"(a) Respondent No. 1 as the plaintiff filed the suit for partition i.e. T.S. No. 424 of 1993 against the appellants (defendant No. 1 and others) claiming shares over the properties described in the schedules of the plaint. The suit was preliminarily decreed and the preliminary decree was drawn up on 14.11.2000.

(b) The defendant No. 1 thereafter filed a petition under Order 9 Rule 13 of the Code of Civil Procedure to set aside the said judgment and decree on the ground that it was passed ex parte against him and he was prevented by sufficient cause from appearing in court on that date and participating in the trial court. The same got numbered as Misc. Case No. 142 of 2000. The trial court rejected the petition on 27.6.2000 holding the decree to be a contested one and as such it was held that the provision of Order 9 Rule 13 of the Code would not come to the aid and assistance of the defendant No. 1.

(c) On 6.7.2002 the plaintiff filed a petition before the trial court for making the preliminary decree final. The proceeding continued. The defendant No. 1 then carried an appeal i.e. Misc. Appeal 79 of 2002 challenging the aforesaid order of the trial court refusing to set aside the ex parte decree applying the provision of Order 9 Rule 13 of the Code. The learned District Judge in that appeal passed an order of stay of further proceeding in the suit and that was later on modified that only sealing and signing of the final decree would remain stayed. The first order was received on 3.9.2002 and the other order was received on 23.12.2002. So, final decree proceeding continued as before.

(d) The learned District Judge finally allowed the above noted Misc. Appeal holding the decree to be an ex parte one so far as the defendant No. 1 was concerned and thus petition under Order 9 Rule13 of the Code was held to be maintainable. Therefore, the matter got remanded to the court below for disposal of the said petition on merit. The order of the appellate court was received on 18.7.2003.

(e) The trial court recorded the evidence and after hearing the parties refused to set aside the ex parte decree holding the plea of defendant No. 1's illness as not believable. This order was again challenged by carrying an appeal vide Misc. Appeal No. 97 of 2003 by the defendant No. 1. In the said appeal, the order of stay was passed on 17.5.2005 staying the sealing and signing of the final decree. That order was received by the trial court on 21.7.2005.

(f) It is now pertinent to state here that in the meantime, final decree proceeding that was continuing, the court below received the report of the civil court commissioner invited objections from the parties. The defendant No. 1 filed objection. So the civil court commissioner was examined and upon hearing finally by order dated 05.07.2005 the report of the commissioner was accepted finding no such infirmity and overruling the objection of the defendant No. 1. It is also worthwhile to mention here that the defendant No. 9 (Kusuma Muduli) had never objected to the said report before acceptance of the said report by order as above. Again on 11.07.2005 the trial court heard argument and passed necessary order making the preliminary decree final mandating that the report of the commissioner, the allotment sheets and the sketch map are to form a part of the final decree. With such order, the matter was awaited directing the parties to submit stamp papers within a fortnight for the final decree to be engrossed upon the same so as to make it executable in the eye of law. On 21.07.2005 the decree was also drawn up and notified. Later, on that date, the trial court received the extract of th