JUDGMENT
Shambhu Prasad Singh, J.
1. Defendants Nos. 6 to 10 of partition suit No. 26 of 1953 of the Court of Subordinate Judge I, Gaya, filed an application in the court below under Order 9, Rule 13 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) for setting aside ex parte final decree in that suit. Their application has been dismissed and accordingly they have preferred an appeal as well as an application in revision. This has been done on account of some doubt as to the maintainability of the appeal against the order. The question whether the present order rejecting the application under Order 9, Rule 13 of the Code is appealable under Order 43, Rule 1 (d) or not depends on decision of the question whether Order 9, Rule 13 is applicable or not to proceedings for final decree in a partition suit. In Surendra Kumar Singh v. Mukund Lal Sahu, AIR 1949 Pat 68 it was held that Order 9, Rule 13 of the Code could not apply to a proceeding for final decree, as no notice was necessary to be given to the defendant about the plaintiff’s application for making a preliminary decree final. This decision of a learned single Judge of this Court was based on an unreported Bench decision in Birendra Prasad Sukul v. Srimati Kiran Bala Mitter, Misc. Appeal No. 23 of 1941, disposed of on 2-11-1942 (Pat). Both these decisions were given in relation to a final decree in a mortgage suit and not in a suit for partition. In Mangal Singh v. Naga Singh, (1962 BLJR 695), Choudhary, J. distinguished the decision in Surendra Kumar Singh’s case, AIR 1949 Pat 68 and made the following observations:
“The principle of law laid down in that case, however, cannot be applicable to a final decree for partition, because in making a final decree for partition the court has to determine the rights of the parties with respect to allotment of particular plots in their respective pathes which could never be possioly done without notice to all the parties concerned.”
A preliminary decree in a mortgage suit itself fixes a time for payment of the money and directs that if the money be not paid within that time or further time which may be allowed for the purpose, a final decree will follow. The parties have really nothing to do in the preparation of the final decree. In case the payment is not made, the final decree has to be prepared as a matter of course. This was emphasised by Harries, C. J. in Birendra Prasad Sukul’s case, Misc. Appeal 23 of 1941, D/- 2-11-1942 (Pat.), in the following words:–
“The judgment-debtor well knows whether he has carried out the terms, and,
if he has not, the decree will be made final, and there is absolutely no necessity for him to have notice.”
Obviously these observations and the rule laid down in the cases of Birendra Prasad Sukul and Surendra Prasad Singh can have no application to a proceeding for final decree in a partition suit. If I may say so with respect, the view taken by Choudhary, J. in Mangal Singh’s case 1962 BLJR 695 is correct. Proceeding for final decree in a partition suit is a new proceeding within the meaning of Section 141 of the Code. Notice of such proceeding must be given to the parties afresh and Order 9, Rule 13 of the Code does apply to such proceedings. It follows from what has been held above that the order of the court below is appealable and the application in revision which was filed as a matter of abundant precaution is infructuous.
2. Before taking up the appeal for consideration on merits, it is necessary to state some facts. In the partition suit which was filed by Smt. Shyama Devi the appellants were the main contestants. They had entered appearance in that suit through Shri Kedar Nath and Shri Akhauri Krishna Prasad, Pleaders. After the preliminary decree was passed in the suit on 31st of August, 1956, they preferred an appeal to this Court against the said decree. This was numbered as First Appeal No. 30 of 1957 and was dismissed. The case of the appellants is that they were always under the belief that on an application being filed by the plaintiffs or defendants 1 to 3, who were supporting the plaintiffs, for appointment of a Commissioner for partition by metes and bounds, they (the appellants) would get a notice from the court or at least from the Commissioner. They expected that, at any rate, the Commissioner would inform their lawyers. Neither they were given any notice by the court nor by the Commissioner of the proceedings for preparation of final decree, nor the Commissioner appointed in the suit for the purpose of effecting partition by metes and bounds informed their lawyers. They came to know of the ex parte final decree only when they received a postcard dated 13th of April, 1970 from Shri Hira Lal, Advocate informing that he would deliver possession of property in village Keyal after demarcation on 20th of April, 1970. The postcard was delivered to them on 18th of April, 1970. They made inspection of the records on 20th of April, 1970 and filed the application on 2nd of May, 1970.
3. Opposite Party Nos. 1 and 2 in their rejoinder stated that the application of the appellants was not maintainable. It was filed just to harass them and that the appellants had knowledge of all the proceeding for preparation of the final decree. Their case further was that, at
any rate, the appellants must be deemed to have come to know of the final decree on 11th of March, 1970 when Shri Hira Lal, Advocate Commissioner, inspected the house at Gaya for demarcating it for delivery of possession and the application was barred by limitation even from that date.
4. The court below has found against the appellants on all the points. It was not prepared to accept the evidence of the only witness examined on behalf of the appellants that they had no information or the case before receipt of the letter of the Advocate Commissioner. In its opinion, the appellants were not prevented” from sufficient cause for non-appearance in the proceeding for final decree.
5. The final decree is dated 2nd
of August, 1965 and was sealed and signed on 25th of May, 1966. If the appellants are held, to have knowledge of the final decree more than 30 days before the filing of the present application, it shall have to be held as barred by time. However, before taking up this question of limitation, I would like to deal first with the question whether the appellants had notice of the proceeding for final decree. The order sheet of the suit shows that the plaintiffs first filed a petition for final decree on 29th of March, 1963. As they failed to take necessary steps in the matter, it was rejected on 9tn of December,
1963. The application was, however, revived. On 12th of February, 1964, Shri Balbhadra Prasad, Pleader was appointed Commissioner for effecting partition. On 29th of January, 1965, he filed his report. No objection was filed to it and it was confirmed on 2nd of August, 1965. The Commissioner’s report shows that he held local inspection at Gaya on 31st of July,
1964, at village Keyal on 16th August, 1964 and at village Helapore on 13th September, 1964. It further appears from it that only Harendra Kumar Sinha, defendant No. 2, who represented the plaintiffs as well, was present. It does not state that any one on behalf of the appellants was present when he held local inspection. He has further stated that before taking up the inspection work, he informed the learned lawyers of the parties whose names were found mentioned in the writ issued to him and it will appear from the certificates of posting filed along with his report. The writ issued to the Commissioner has been marked Ext. 4. In it Shri Narbadeshwar Prasad is mentioned as Pleader for the plaintiffs and Shri Damo-dar Prasad Sinha as Pleader for defendants. Apparently it does not mention the names of Shri Kedar Nath and Shri Akhauri Krishna Prasad who were lawyers for the appellants in the suit at the preliminary decree stage. No paper has been produced on behalf of the respon-
dents to show that in fact any notice o£ the proceeding for final decree either by the court or the Pleader Commissioner was given to the appellants. The certificates of posting, referred to in the Commissioner’s report, too have not been brought on the record. The Commissioner has also not been examined to prove that he gave notice either to the appellants or their lawyer. In the circumstances the court below has erred in not accepting the evidence of A.W. 1 that the applicants had” no notice of the final decree proceeding. The testimony of O.W. 1 who is an interested witness cannot be accepted when the documentary evidence on the record supports the evidence of A.W. 1. Accordingly, I am of the view that the appellants had no notice of the proceeding for the final decree either by themselves or through their lawyer and it was on that account that they could not be present in the proceeding at any stage. In other words, they have shown sufficient cause for their non-appearance in the proceeding.
6. On the question of limitation, great reliance was placed by learned counsel for the respondents on the postcard (Ext. 2) which states that on 11th of March, 1970, the Commissioner, i.e., Shri Hira Lal the writer of the postcard had inspected the house at Gaya in presence of the parties. The case of the appellants is that there was no inspection on that date and even if there was any inspection, it was in their absence. Shri Hira Lal has not been examined to say that he really held inspection of the house at Gaya on 11th of March, 1970 and all or any of the appellants were present there at that time. Be that as it may. Even assuming that Shri Hira Lal held inspection of the house at Gaya on 11th of March, 1970, in presence of some of the appellants, from that it cannot be inferred that the appellants had notice of the final decree. The postcard does not say that Shri Hira Lal informed any one of the appellants that the final decree had already been prepared and he was there to demarcate the house for the purpose of giving delivery of possession. The appellants might have thought, even if they were present there, that Shri Hira Lal was appointed Commissioner in the suit itself for preparing takhtas for the parties and was holding inspection for that purpose. In the case of Panna Lal v. Murari Lal, AIR 1967 SC 1384 it has been held that the expression ‘knowledge of the decree’ in Article 164 of the Limitation Act (old) means knowledge of the particular decree which is sought to be set aside. It has further been held that when the summons was not duly served, limitation under that article does not start running against the defendant because he has received some Vague information that some decree has been passed against him and that the test
of the sufficiency is not what the information would mean to a stranger, but what it meant to the defendant in the light of his previous dealing with the plaintiff and the facts and circumstances known to him. Article 123 of the new Limitation Act corresponds to Article 164 of the old Act as there is no material change in the language of the two articles. On the facts and in the circumstances of the case, it cannot be held that from the mere fact of the Commissioner holding inspection of the house at Gaya on 11th or March, 1970, the appellants must have had information and knowledge of the ex parte final decree against them. In my opinion, the appellants have also succeeded in proving that “they came to know of the ex parte final decree within SO days of the filing of the present application. The court below, therefore, has also erred in holding that the present application under Order 9, Rule 13 of the Code is barred by time.
7. In the result, the appeal is allowed and the order of the court below is set aside. The application of the appellants under Order 9, Rule 13 of the Code is also allowed and the ex parte final decree is set aside. If the plaintiffs or any of the defendants take necessary steps in the matter, the court below may appoint a new Pleader Commissioner for effecting partition of the suit properties by metes and bounds. The appellants will be entitled to their costs or this Court. Hearing fee is assessed at Rs. 64/-. The civil revision is dismissed as not maintainable and infructuous.
S.P. Sinha, J.
8. I agree.