This appeal challenged an order quashing the ex-parte judgment in a partition suit. The High Court found the impugned order had no error, citing valid service of notice and the petitioner's own non-appearance in the miscellaneous case, and dismissed the petition.
The civil miscellaneous petition is dismissed.
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IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL MISCELLANEOUS JURISDICTION No.283 of 2018
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Amit Kumar Son of Rajeshwar Tiwari Resident of Village-Bhawanipur, P.O.Thikaha Bhawani, P.S.-Sangrampur, District-East Champaran (Bihar).
… ...Respondent 1st Set
====================================================== Appearance : For the Appellant/s : Mr. Prabhat Kumar Dipak For the Respondent/s : Mr. ======================================================
CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL ORDER
The petitioner has filed this civil miscellaneous petition
against the order dated 06.11.2017, passed in Misc. Case No.09 of 2017 by which the learned Sub-Judge-VIII, Motihari allowed the petition of the respondent filed under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure and set aside the judgment and decree passed ex-parte on 30.07.2016 in Partition Suit No.1133 of 2014.
Patna High Court C.Misc. No.283 of 2018(2) dt.09-10-2018 2/2
The learned counsel for the petitioner submits that no notice was served on the petitioner in the miscellaneous case and the miscellaneous case was fixed for ex-parte hearing on mere assumption that the petitioner was appearing in the final proceeding but petitioner was knowingly not appearing in the miscellaneous proceeding but I find from the order dated 28.10.2017 that the service report of notice served on the petitioner was received and the service was accepted as valid service. The court recorded the finding that the petitioner did not appear in the miscellaneous case although he was appearing in the proceeding for preparation of final decree pending in the same court. From the perusal of the record, it appears that the learned Sub-Judge found that no notice was served on the respondents on the correct address and the respondents had no knowledge about the pendency of Partition Suit No.1133 of 2014. Accordingly, after appreciating all the facts set aside the ex-parte judgment and decree passed in Partition Suit No.1133 of 2014.
I do not find any error in the order impugned. Accordingly, this civil miscellaneous petition is dismissed.
(Prabhat Kumar Jha, J)
S.KUMAR/-
U T
2 issues framed by the court
Whether to set aside the dismissal of the petition which challenged the quashing of an ex-parte decree on grounds of poor notice service.
Whether the findings of the Sub-Judge regarding valid notice service and lack of knowledge by respondents were erroneous.
2 provisions across 1 enactments
Amit Kumar
Abhishek Kumar
Prabhat Kumar Jha
S. Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
