The appearance of the defendant in the suit and knowledge of the proceedings negate the plea of non-service of notice, and the settlement of the suit land and interference with possession were upheld based on the evidence presented.

JUDGMENT :

D. Dash, J.

1. This appeal has been filed challenging the judgment and decree passed by the 1st Additional District Judge, Puri in RFA No. 22-66 of 2011/2010. The appeal was filed against the ex parte judgment and decree dated 20.05.2010 and 22.06.2010 respectively passed by the learned Civil Judge (Junior Division) Puri in C.S. No. 159 of 2004. The respondent as the plaintiff had filed C.S. No. 159 of 2004 in the court of learned Civil Judge (Junior Division), Puri for declaration of his right, title, interest and possession over the suit land with further declaration that the defendant has no interest over the same and also with the prayer of permanent injunction. The suit having been decreed ex parte, the defendant in the said suit, as the appellant had filed the appeal as above. That appeal having also been dismissed and therefore this move is before this Court by filing the second appeal.

2. The appellant in the said appeal challenges the said ex parte judgment and decree passed by the trial court on the ground that while rendering the findings as regards the fight, title and interest of the plaintiff-respondent in respect of the suit land, the trial court had not taken into account the factum of initiation of encroachment case bearing No. 25 of 2005 as also the report of the local Revenue Inspector submitted in the said proceeding. The next ground taken is that it has not been established that the lessee in the said waste land lease case and the appellant are one and same person. It was also raised as a ground of attack in the appeal that the defendant-appellant was not duly served with the notice of the suit and the suit accordingly had been disposed of, without following the legal procedure as the defendant-appellant has not been given the scope to contest the suit for which the judgment and decree cannot stand to legal scrutiny.

3. The lower court having gone to discard the second ground, as contended by the defendant-appellant has also gone to hold that the defendant-appellant having appeared in the suit as well as in the miscellaneous proceeding arising out of the suit by filing vakalatnama, the same has to be accepted as his appearance in the suit. So according to it, non-service of notice in the original suit does not stand as a ground to hold that the suit has been disposed of behind the back of the defendant-appellant.

4. It is the settled position of law that as against an ex parte decree, the party aggrieved by the same may either file an appeal or an application under order 9, rule 13 of the Code of Civil Procedure, or an application under Section 151 of the Code in case where fraud is said to have been practiced in obtaining the said ex parte decree or in appropriate cases even by filing the separate suit, the same may be challenged. It is also the trite law that for filing an application under order 9, rule 13 of the Code in the court which passed the ex parte decree, the defendant in an appeal carried against the said ex-parte decree may well urge the point that the suit has been decided behind his back without serving notice upon him in accordance with law.

5. The lower appellate court while addressing this ground of attack has held that even though in the order sheet, the fact of appearance of the appellant in the original suit, is not so indicated but nonetheless the vakalatnama filed by the appellant-defendant can be safely treated as a memo of appearance in the original suit and non service of notice of the original suit cannot stand as an excuse for him because of his appearance in the interlocutory application which clearly goes to show his knowledge about pendency of the original suit. It has again found that the violation of any procedure cannot defeat the ends of justice for technical irregularity.

6. The appeal is admitted on the following substantial question of law:

Whether the observation of the courts below to the effect that appearance of the defendant in interlocutory proceeding amounts