ORDER
S.K. Pande, J.
1. Arguments heard.
2. This revision under Section 115, CPC is directed against the order dated 20-10-94 passed by Civil Judge Class II, Orchha in M.J.C No. 5/91, allowing application under Order 9 Rule 13, CPC filed by respondent No. 3, whereby ex-parte decree dated 27-4-88 in C.S. No. 11-A/88 was set aside.
3. Facts in brief are, petitioner instituted C.S. No. 11-A/88 in the Court of Civil Judge Class II, Orchha against respondent Nos. 1 and 2 State of M.P. and Tehsildar, Pirthvipur respectively for relief of permanent injunction in respect of the suit land measuring 8.00 acres.
4. It was contended by respondent Nos. 1 and 2 that an area measuring 2.5 acres out of the suit land has been allotted to respondent No. 3 Purva Madhyamik Shala, Luharguan. Thereafter, respondent Nos. 1 and 2 remained absent and vide judgment dated 27-4-88, the suit was decreed. Matadeen, said to be the President of the Education Committee of respondent No. 3 filed an application under Order 9 Rule 13, CPC alongwith application under Section 5, Limitation Act. On these applications, the impugned order, dated 20-10-94 was passed by the Court below and the decree vide judgment dated 27-4-88 passed ex-parte was set aside.
5. In this revision, the contention of the petitioner is that respondent No. 3 being not a party to the suit and proceeding in C.S. No. 11-A/88, at his instance, the decree passed vide judgment dated 27-4-88 ought not to have been set aside. The application for setting aside the ex-parte decree was filed by the respondent No. 3 on 6-9-91. It was hopelessly barred by time.
6. None appeared for respondent No. 3. From judgment dated 27-4-88, it is clear that respondent Nos. 1 and 2 have stated that an area of land measuring 2.5 acres out of the suit land has been allotted to respondent No. 3. In spite of this, the petitioner failed to implead respondent No. 3 as a party to the suit. In Para 4 of the judgment dated 27-4-88 in C.S. No. 11-A/88 part of statement of petitioner being dispossessed, was also discussed. The intention of the petitioner/plaintiff may be obvious to seek a decree behind the back of the respondent No. 3.
7. In any case, respondent No. 3 was not a party to the suit, therefore, at his instance, on an application under Order 9 Rule 13, CPC, ex-parte decree passed vide judgment dated 27-4-88, could not have been set aside. Respondent No. 3 is not bound by the decree passed in C.S. No. 11-A/88.
8. In the circumstances, with the aforesaid observation, the revision is allowed. The impugned order setting aside the ex-parte decree in C.S. No. 11-A/88 is set aside.
9. Parties to bear their costs.
10. Counsel fees as per rule or certificate (whichever is less). C.C. as per rules.