The main legal point established in the judgment is the significance of the presence or absence of parties in determining the applicability of Order XVII Rule 2 and Rule 3 of the Code of Civil Procedure and the maintainability of the application for setting aside the ex parte decree under Order IX Rule 13.

Arun Tandon, J.—Heard Sri Ajay Kumar Singh, learned counsel for the petitioner, Sri Piyush Shukla, learned standing counsel for the respondent Nos. 1 and 2 and Sri A. C. Tripathi, learned counsel for the respondent Nos. 3 and 4.

2. This writ petition is directed against the order dated 13th August, 1984 in Case No. 218 of 1973, Baya v. Kanhaiya, passed by the IXth Additional Munsif, Varanasi, as also against the order dated 24th January, 1985, passed by the Ist Additional Civil Judge, Varanasi in Misc. Appeal No. 381 of 1984, Lakhan and others v. Baya and others, whereby the learned Additional Civil Judge has dismissed the said appeal and upheld the order dated 13th August, 1984 passed by the learned Additional Munsif.

3. Original Suit No. 218 of 1973 was filed by respondent No. 3, namely, Baya for partition of one third share in respect of the house being property No. D-62-1, situate in Mohalla Sonia City, Varanasi. The said suit was decreed ex parte under the judgment and order dated 6th July, 1982. In the said suit, the father of the petitioners Sri Kanhaiya was one of the defendants. During the said proceedings, Sri Kanhaiya expired, the plaintiffs-petitioners, who were legal heirs filed an application for recall of the ex parte judgment and decree, which was number as Misc. Case No. 59 of 1983. The said application for recall of the ex parte order was filed only after five days from the date of the ex parte decree on 11th July, 1983. The application so filed, was allowed and the suit was restored to its original number after recall of the ex parte decree.

4. An application, being Paper No. 10/11-C was filed on behalf of the respondent No. 3, Sri Baya for recall of the order dated 13th January, 1984, whereby the ex parte decree was recalled. The said application was allowed vide order dated 11th May, 1984, on the ground that the application filed to set aside the ex parte decree, was decided without service of notice upon decree holder.

5. Thereafter the trial court restored the application for setting aside the ex parte decree and vide order dated 13th July, 1984, rejected the said application of the defendants-petitioners.

6. Feeling aggrieved by the aforesaid order, the petitioner-defendants filed an appeal, which was numbered as Misc. Civil Appeal No. 381 of 1984. The appeal has also been dismissed by the Ist Additional Civil Judge by means of the order dated 24th January, 1985. Hence the present writ petition.

7. I have heard learned counsel for the parties and have gone through the records of the writ petition.

8. Learned trial court has rejected the application for setting aside the ex parte decree on the ground that the suit had been decided on merits under Order XVII Rule 3 of the Code of Civil Procedure. The application for recall of the ex parte decree was not maintainable. The defendants should have filed an appeal against the said judgment and decree. After recording the said findings, the trial court has proceeded to make certain remarks to the absence of the defendants on the relevant date.

9. Feeling aggrieved by the order of the trial court, the petitioner filed an appeal under Order XLII Rule 1 (d) of the Code of Civil Procedure. The said appeal was registered as Civil Misc. Appeal No. 381 of 1984. The appeal has also been rejected on the ground that the application filed on behalf of the defendants under Order IX Rule 13 of the Code of Civil Procedure, was not maintainable in view of the fact that the Court had decided the suit on merits under Order XVII Rule 3. Hence the present writ petition.

10. In the order dated 6th July, 1983, which has been enclosed as Annexure-8 to the writ petition, it has been specifically recorded that the defendants-petitioners as well as his counsel were not present and in such circumstances, the Court proceeded to close the evidence of the defendants and after hearing the arguments of the petitioner’s counsel, delivered the judgment on the same day.

11. F