A final decree passed without notice to the parties is not valid and can be set aside on the application of the aggrieved party.

( 1 ) THIS civil revision filed by the defendant arises out of the following circumstances.

( 2 ) THE plaintiffs brought a suit for partition of certain agricultural plots including a grove. The suit was decreed by the Munsif. A preliminary decree was passed and then the record was sent to the revenue court for preparation of the partition scheme. Thereafter an appeal was preferred by the defendant and the appellate Court modified the preliminary decree. On receipt of the partition scheme from the revenue Court the learned Munsif passed another order sending back the papers to the Revenue Court for the preparation of a fresh partition scheme according to the amended decree. A fresh partition scheme was received from the Revenue Court but no notice of it was given to the defendant or his counsel, and the learned Munsif passed a final decree in terms of the fresh partition scheme on 13-8-1957.

( 3 ) AN application was made by the defendant under Order 9, Rule 13, C. P. C. for the setting aside of the final ex parte decree, and the main contention was that tne final decree having been prepared without notice should be set aside. This application was made on 20-ll-1957, that is about three months after the final decree, and the defendant claimed knowledge of the decree from the 27th Oct. 1957 when the Amin went to the spot to give delivery of possession. The application was dismissed on the ground that the defendant having contested the case there was no sufficient ground for his absence. The lower appellate Court also dismissed the appeal on the ground that a final decree being a continuation of the suit and the defendant having been duly served and having offered contest, it was his duty to find out what was happening in the case. The application was therefore dismissed on the ground of limitation. It is against these findings that the present revision has been filed.

( 4 ) I have heard the learned counsel for the parties. Both the Courts have given a finding that no notice of the final decree either to the defendant or to his counsel was given and so it has been contended that the proceedings for final decree having been freshly started after the receipt of the partition scheme from the revenue court, a notice was necessary and the final decree is not binding on the defendant. The contention is that in such a case not only a notice was necessary but that the second part of Article 164 of the Limitation Act applied and the application for restoration could be made within thirty days of the date of knowledge. This contention of the learned counsel must be accepted.

( 5 ) THE learned counsel have not been able to cite any authority directly on the point. There is also no provision in Section 54 or Order XX, Rule 18, C. P. C. or in the rules framed under the u. P. Z. A. and L. R. Act that a notice should go to the parties after the partition scheme is received; out all the same absence of such a provision does not give the Court a power to pass a final decree without notice to the parties. The argument of the continuation of tne suit has also no bearing on the point Because after the passing of the preliminary decree the proceedings for final decree remained interrupted in the Court of the Munsif because papers were sent to the revenue court for preparation of the partition scheme. On the principle of natural justice the parties should have been informed of the partition scheme and their objections invited after giving a notice to them. The final decree passed without notice should have been set aside on the application of tns defendant. In the case of Durga Prasad v. Met Ram, AIR 1923 All 79 (2) a division Bench of this Court held mat when an ex parte decree was passed without giving notice of the date to which the case was adjourned to the defendant or his counsel, the ex parte decree should be set aside. There are other cases also in which the same principle has been reiterated but it is not necessary to make a re