A.R. Navkar, J.

1. This is an appeal against the order and decree dated 4-12-1979, passed by the Fourth Additional District Judge, Gwalior, in Civil Misc. Case No. 7 of 1919, which was preferred against the ex-parte Judgment and decree dated 12-2-1979, passed by the Fourth Additional District Judge, Gwalior in Case No. 13-A of 1977 Civil Original.

2. The facts of the case are that the respondent filed a civil suit bearing No 13-A of 1977 in the Court of the Fourth Additional District Judge, Gwalior for partition of Joint Hindu Femily property situaled at Mainawali Gali, Lashkar, against eight sharers, wherein the plaintiff alleges to have 1/4th share, During the pendency of the suit, the defendant, Shivkailash, husband of appellant No. 1 and father of appellant No. 2 and respondent Nos. 9 to 14, died and they were brought on record as his legal representatives. Except the heirs of late Shivkailash, none of the other respondent-defendants has filed any written statement in the original civil suit That is (sic) legal representatives of Shivkailash are the contesting defendants.

3. In Original Civil Suit, 25-10-1978 was fitted for evidence, on 25-10 1978, Counsel of Smt. Girjadevi, appellant No 1, requested the learned Court to adjourn the date as Smt. Girjadevi appellant No. 1 was unable to attend the Court because of illness and other reasons. The learned trial Judge adjourned the date for evidence to 2-2-1979, and imposed costs of Rs. 25/- with an order to keep the witnesses present in the Court at her own risk On 2-3-1979. counsel for the appellant and one Smt. Ranjana Devi pleaded no instructions in the case. In absence of the defendants except one Amarnath, the learned trial Court proceeded exparte, against minors without appointing a new G. A. L. when original G. A L. Shree P. C. Jain was absent and recorded the statements of plaintiff Indranath alone and closed the evidence and fixed the case for judgment on 12-2-1979. On 12-2-1979. the Judgment was pronounced and decree was passed. Against the said Judgment and decree, appellant Nos. 1 and 2 filed an application on 5-3-1979 under Order 9 rule 13 of the Code of Civil Procedure to set aside the Judgment and decree dated 12-2-1979.

4. The main submission in the application was that she was looking after the case for herself as appellant No. I and for her son appellant No. 2 and her daughter Smt. Ranjana Saxena, Appellant Smt. Girjadevi Saxena, who is a lecturar in Private Cegree College, Guna, was down with fever (jaundice) from 2-2-1979 to 3-3-1979 and she was advised rest by the Doctor, Further, she was advised not to undertake troublesome journeys. Due to this ill-health and mental agony she was suffering because of the death of her husband on 10-3-1978, she could not give instructions to her advocate in time and due to this reason alone, the appellant could no present herself in the Court on 2-2 1979 and 12-2-1579 and an ex-parte decree and judgment were passed against the appellants. In support of her application, Girjadevi submitted her affidavit, a medical certificate and also gave her evidence, while on behalf of respondent No 2. no evidence of rebuttal was led. The learned Fourth Additional District Judge, Gwalior did not agree with the above contentions of appellant No. 1 and rejected her application submitted by her under Order 9 rule 13, CPC, Aggrieved by the said order of dismissal, the present appeal is filed.

5. On the date on which the ex-parte decree was passed, I may mention that Santosh Kumar Saxena, respondent No. 10 was aged 9 years, while Sanjiv Kumar, Saxena, respondent No. II was 8 years old; Kumari Jyoti Saxena, who is respondent No 12 was 15 years old; Kumari Rashmi Saxena, who is respondent No 12 was 13 years old and Kumari Abha, who is respondent No. 14 is 10 years old and one P L. Jain was appointed by the Court as guardian-ad-litem for looking after the interests of the minors and to defend them. But, he did not appear on the said date. Even th