IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Revision No.778 of 2010

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Uchit Lal Sah, son of Late Mohan Lal Sah, resident of village-Saifganj,

Bara Bazar, P.O., P.S. and District-Katihar.

.... .... Applicant/Petitioner.

Versus

1. Anil Kumar Sah, son of Late Babulal Sah, resident of village-

Saifganj, P.O. and P.S. Katihar, District-Katihar.

….Respondent/O.P. Ist. Set.

2. Suresh Lal Sah, son of Late Mohan Lal Sah, resident of village-

Nazirpur, P.O. Nazirpur, P.S. Manikchak, District-Malda (West

Bengal).

3. Phani Lal Sah, son of Late Sukhni Sah.

4. Deo Narayan Sah, son of Late Ritu Sah.

5. Laxmi Narayan Sah, son of Late Ritu Sah.

6. Dilip Narayan Sah, son of Late Ritu Sah.

7. Smt. Chanda Devi, daughter of Late Sitaram Sah.

8. Bandana Kumari, daughter of Late Ritu Sah.

9. Vishwajeet Sah, son of Late Sitaram Sah.

All resident of Mohalla-Saifganj, P.O. and P.S. Katihar, District-

Katihar.

.... .... Respondents/Opposite Parties 2^nd Set.

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Appearance :

For the Petitioner : M/s. Shashi Shekhar Dwivedi, Sr. Advocate,

Ranjan Kumar Dubey and Mrs. Sangeeta

Sharma, Advocates.

For the Opposite Party No.1: M/s. P.K. Jaipuriyar &Anshuman Jaipuriyar,

Advocates.

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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR

MISHRA

CAV ORDER

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21

21-10-2014

This Civil Revision is directed against the order dated

16.09.2010 passed in Misc. Appeal No.01 of 2009 by the District Judge,

Katihar, whereby he affirmed the order dated 16.01.2009 passed by the

Munsif, Katihar, dismissing the Misc. Case No.19 of 2007 filed under

Order IX Rule 13 of the Code of Civil Procedure by the defendant-

petitioner to set aside the ex-parte Judgment and Decree dated 23.08.1993

of Title Suit No.283 of 1988.

2. The opposite party no.1 had filed the Title Suit No.283 of

Patna High Court C.R. No.778 of 2010 (21) dt.21-10-2014

2/12

1988 against the petitioner and others for declaration of right and title in

respect of suit property on the basis of the sale deed dated 25.04.1985

executed by Ganesh Sah and the guardian appointed by the District

Judge, Katihar for Arti Kumari, minor daughter of Ganesh Sah and also

for declaration that the sale deed dated 09.11.1983 executed by minor

Arti Kumari in respect of the suit property in favour of the defendant-

petitioner is null and void with relief of recovery of possession in respect

of the suit property. The said suit was decreed ex-parte by the court of

Additional Munsif-I, Katihar, vide Judgment and Order dated 23.07.1993.

3. According to the defendant-petitioner he came to know on

14.11.2007 through Madhusudan Jha, Advocate Clerk (A.W.1) that

opposite party no.1 has filed Execution Case No.01 of 2001 against him

on the basis of the decree passed on 23.08.1993 in Title Suit No.283 of

1988. Thereafter, he applied for certified copies of the Judgment, Decree

and Depositions and obtained the same on 20.11.2007. He got inspected

the record of the suit on 21.11.2007 through Sri R.K. Verma, Advocate

(A.W.4), then came to know that the Process Server on the summon as

issued under ordinary process reported about refusal to take summon by

this petitioner but the said report had not been proved. The plaintiff-

opposite party no.1 did not take fresh step for service of summon rather

he filed an application for substituted service of summon through

publication in the District Gazette, not in daily newspaper. Accordingly,

summon was published in the District Gazette, Katihar, and, thereafter,

suit proceeded for ex-parte hearing and decreed ex-parte on 23.08.1993.

He