Notice to the defendants in a proceeding under Order 9 Rule 4 of the CPC is mandatory in cases where the defendant had entered into contest by filing his defense.

JUDGMENT :

R.C. Patnaik, J. - This revision is directed against an order dated 21-11 1985 passed by the learned Subordinate Judge, Bhadrak, in Misc. Case No. 93 of 1984 restoring the plaintiffs suit which was dismissed for default on 19-6-1984 for none appearance of either of the parties when Original Suit No. 35 of 1978 for partition was called on for hearing.

2. Upon dismissal of the suit, the plaintiff filed an application under Order 9, Rule 9 of the CPC for restoration of the suit, Labelling of the application as one under Order 9, Rule 9-, CPC, was misconceived since neither party appeared when the suit was celled on for hearing. The dismissal was under Order 9, Rule 3 CPC. Hence, the application for restoration should have been labelled as one under Order 9, Rule 4 of the Code of Civil Procedure, On the evidence led, the trial Court restored the suit subject to ' payment of cost by the plaintiff to the contesting defendant No. 1. It may be mentioned here that defendants 6, 27 to 31 and 45 to 47 were set ex parte by order dated 28-3-1979, defendants 12(Ka) to (Cha), 27 (Ka) & (Kha) and 23 were set ex parte by order dated 31-8-1982 and defendants 42 (Ka) to (Ga) were set ex parte by order dated 5-1-1983.

3. Mr. P. Misra, the learned counsel for the petitioner, basides challenging the order on merits has urged that the plaintiff having not impleaded defendants 12 (Ka) to 12 (Cha), defendants 6, 21 (Ka) and (Kha), defendants 42 (Ka) to (Ga) and defendants 45 to 47 and notices not having been taken to the said defendants in the matter of restoration of the suit, the proceeding was incompetent and the order restoring the suit was invalid.

4. Learned counsel for the opposite parties has, however, urged that the aforesaid defendants did not enter appearance. Hence they were set ex parte. Defendant alone contested the suit by filing written statement. Therefore, failure to implead the aforesaid defendants or take notices to them in a proceeding under Order 9, Rule 4, did not introduce art infirmity in the proceeding or in the order. Noticing some conflict of views in several cases of this Court, the matter was referred to a Division Bench and that is how it has come before us.

5. The question for consideration before us is if notice to the defendants in a proceeding under Order 9, Rule 4, of the CPC is mandatory. That there was some conflict in this Court was noticed by S. C. Mohapatra, J. in Binod Kumar Agarwala and Another Vs. Mst. Satyabhama Debi. But without referring the matter to a larger Bench, he refused to follow the rule laid down in laxminarayan Agarwala v. Lachman Prasad Agarwala 39 (1973) CLT 261. and preferred the view expressed in Harmohan Senapati v. Shrimati Kamala Kumari Senapati the earliest reported in case of this Court decided by a Division Bench, several defendants had entered appearance and filed their written statements. On the date of hearing,the plaintiffs and defe ndants 4 to 12 sought adjournment which having been refused, defedant 4 to 12 filed their hazira of witnesses. There was non-appearanc of the plaintiffs when the suit was called on for hearing and, hence, the suit was dismissed for default. On an application filed under Order 9, Rule 9, CPC notice was served only on defendants 4 to 12. No notice was taken to the other defendants. The suit was restored and this Court was moved by defendants 4 to 1 2 for exercise of its revisional jurisdiction. Analysing the provisions contained in Order 9, Rules 3 and 4, Ray C. J. observed as follows ;

"...If the suit had not been set down ex parte against them and if they were going to be bound by the order of restoration that had passed, I do not understand how any order affecting them could be passed in their absence. Some support is prayed in aid from the absence of a provision in the terms or the like of Sub-rule (2) of Rule 9 of the Order from Rule 4. But that does not necessarity mean that in any default under Order 9, Rule 3 restoration can be had in the ab