( 1 ) EXPRESSING doubt about the correctness of the decision rendered in the case of Sumera v. Madanlal, AIR 1989 Madh Pra 224 pertaining to the issue that after the dismissal of an application under O. 9, R. 13 of the Code of Civil Procedure (in short 'the Code') to set aside an ex parte judgment and decree whether an appeal could lie under S. 96 (2) of the Code, assailing the pregnability of the judgment and decree on merits, a Division Bench of this Court thought it apposite that view taken in the case of Sumera (supra) required reconsideration and accordingly sought a reference to a larger Bench. That is how the matter is before us.

( 2 ) THE facts as have been uncurtained are that the plaintiffs/respondents filed a suit for partition of certain properties situated at Napier Town, Jabalpur. The other prayers in the suit included grant of mesne profit and delivery of physical possession. Various grounds were averred for claiming these reliefs. In the suit one Smt. Suchitra Devi was arrayed as defendant No. 1 and during the pendency of the suit she expired. As her legal representatives were already on record as plaintiff and defendant No. 2, her name was deleted a