The defendants' appearance and opportunity to object are crucial in setting aside an ex parte decree. The merit of the judgment and decree is immaterial in such cases.

Ram Surat Ram (Maurya),J.

1. Heard Sri B. Malik, for the petitioners.

2. The writ petition has been filed for quashing the qurras prepared by Lekhpal dated 27.11.2012 in pursuance of preliminary decree passed in partition suit and orders of Sub-Divisional Officer dated 15.12.2012, confirming the qurras and directing for preparation of final decree, final decree dated 14.01.2013 and order dated 11.11.3013 dismissing the application of the petitioners under Order IX Rule 13 C.P.C. for setting aside final decree and of Additional Commissioner dated 12.03.2014, dismissing the revision of the petitioners, arising out of suit for declaration and partition under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act).

3. Jagpal Singh (respondent-5) filed a suit (registered as Suit No. 88 of 2011) for partition of his 1/8 sharer in plots 176 (area 0.190 hectare), 198 (area 3.559 hectare), 278 (area 0.114 hectare), 282 (area 0.228 hectare) and 308 (area 0.409 hectare) of village Chhajjpur, tahsil and district Meerut. In this suit the petitioners were impleaded as defendants-1, 2, 5 and 6 respectively. On the summons being issued, all the defendants put appearance in the suit, through an advocate and jointly filed their written statement on 17.04.2012. There was no dispute relating to share of the parties as such Trial Court heard arguments of the parties on 14.05.2012 and fixed 19.05.2012 for delivery of order. On 19.05.2012 preliminary decree was passed and Lekhpal was directed to prepare qurras of the parties according to the preliminary decree. The case was adjourned time to time as qurras were awaited. Ultimately Lekhpal submitted qurras on 27.11.2012. Trial Court also recorded statements of Lekhpal on that day and invited objections of the parties on the qurras. No one filed any objection against the qurras as such Trial Court by order dated 15.12.2012 confirmed the qurras and directed for preparation of final decree. The plaintiff deposited requisite stamp papers for preparation of final decree, which was prepared on 14.01.2013.

4. The petitioners filed an application dated 22.06.2013 (registered as Misc. Restoration Application No. 119 of 2013), under Order IX Rule 13 read with Section 151 C.P.C. for setting aside the final decree dated 15.12.2012, along with delay condonation application. In the application as well as the affidavit filed in support of it, it has been stated by the petitioners that as share of the parties were admitted in written statement as such the court directed for passing the preliminary decree, Bhopal Singh (petitioner-2) came to the court several times and inquired from the reader, who informed that preliminary decree was not passed. Thereafter for some times, the applicant did not come to the court. No notice was given to the applicants of preliminary decree dated 19.05.2012. Lekhpal prepared qurras in collusion of the plaintiff, in which the land which was in the possession of the applicants were given in the qurra of the plaintiff and filed in the court on 27.11.2012, behind the back of the applicants, which was confirmed by the Trial Court by order dated 15.12.2012 as no objection was filed against the qurras and thereafter final decree was prepared on 14.01.2013. It is only, when the applicants took extract of khatauni from Lekhpal on 20.06.2013, then they came to know about the qurras and its confirmation and final decree.

5. Jagpal Singh (respondent-5) filed his objection to the application for setting aside the final decree and delay condonation application on 08.11.2013. Sub-Divisional Officer, heard the arguments of the parties on the application for setting aside final decree and by his order dated 11.11.2013, held that the defendants had put appearance in the court through an advocate and filed their written statement in the suit. They attended the proceedings in the Court up to 14.05.2012, on which date arguments were heard and 19.05.201