Basanti Devi vs Gena Sah and Others

Ravi S. Dhavan, C.J.—A title suit No. 32 of 1994 had been filed by the Petitioner-Plaintiff. He sought a declaration on his title over the suit land referred to in Schedule 1 to the plaint. Other ancillary reliefs also have been sought in the suit. The suit proceeded ex parte. The Defendants did not file their written statement. The suit was decreed ex parte and the execution proceedings began being Execution Case No. 1 of 1999. In the year 2000 the Defendant 1(a) filed a miscellaneous case under Order 9 Rule 13 of the CPC that there had been an ex parte decree. His main defence was that the suit had proceeded ex parte as he had no knowledge of it and he had not been served notice as had been issued in the suit proceeding.

The issue plainly is whether, in fact, the Defendants were without notice in the suit proceeding and had not been issued notice or they had knowledge of the suit proceeding or had deliberately kept away so as to permit a stage of ex parte proceeding and thereafter an ex parte decree. If it is the first circumstance then the Defendants made out a prima facie case to have the matter adjudicated on merits. If it is the second circumstance then the Defendants can not take advantage in a manoeuvring state of affairs to delay the proceeding in the suit.

On record the order dated 30.11.1998 of learned Sub-Judge-II, Bagha in Title Suit No. 32 if 1994; Basanti Devi v. Gaina Sah and Ors. is a finding of facts on the state of affairs which reflects on the situation which goes to the root of the matter. Having been satisfied from the record the learned sub-judge observed that the Defendants 1 and 1(a) not excluded entered the suit proceeding during its pendency and in which chose not to file a defence against the plaint case. This then ends the issue whether the Defendants were without notice. At every given time the Defendants had notice of the suit proceeding but chose not to file their written statement. This clearly implied that they had intended to drag the litigation. The record is so certified.

The court where the Miscellaneous Case No. 1 of 2000 is pending upon an application filed by the Defendant 1(a) will take notice of this order. The execution case will now proceed in accordance with law.

The revision succeeds.