IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1492 of 2007 Krishna Prasad & Anr Versus Krishna Bhagat & Ors ----------- 5 21-7-2011 Heard the learned counsel appearing on behalf of the petitioners and the learned counsel appearing on behalf of opposite party no.1. The learned counsel for the petitioners submits that this civil revision is directed against the order dated 12-6- 2007 passed by the Munsif, Aurangabad, in Miscellaneous Case No. 1 of 2000 whereby he has allowed the petition filed by the opposite party 1st set under Order 9 Rule 13 C.P.C. and has set aside the ex-parte decree in T.S.No. 221 of 1998 dt.7- 2-2000 . It has been submitted on behalf of the petitioners that the opposite party 1st set, who were the defendants in the suit, had full knowledge of the proceeding of the suit, which fact is established from the service report where the defendant no.1, who was the Karta of the family, had received notices on behalf of the defendants of his family. Further, in the proceeding under section 188 Cr.P.C. also there was reference to this pending Title Suit No. 221 of 1998 and in this manner also the defendants became aware of the title suit and as such 2 their case that they had no knowledge of the suit and no summons had been served upon them has got no basis. The learned counsel for the petitioners has also pointed out that the learned court below in the impugned order has also recorded the finding regarding the knowledge of he defendants about pending Title Suit No. 221 of 1998. He has submitted that the learned court below has wrongly exercised the discretion in favour of the defendants and has wrongly passed the order setting aside the ex-parte decree. The learned counsel appearing on behalf of the opposite party no.1 , however, has maintained his submission that summons were not validly served upon the defendants and the ex-parte decree dated 7-2-2000 has been recalled in the interest of justice. It has been further submitted on behalf of the opposite party that a liberty should be given to get lis adjudicated on merit and the right, title and interest of a party in an immovable property normally should not be allowed to be declared uncontested. After having heard the rival submissions of the counsels and after perusing the order impugned in this revision application, it appears that the learned court below has correctly come to the finding that a liberty should be 3 given to the defendants to contest the suit and get their rights determined finally through process of the court. However, as the plaintiffs have suffered pecuniary expenses due to action/inaction of the defendants, it would be in the fitness of things to award proper cost. Hence, the cost awarded by the learned court below is enhanced and the defendant nos. 1 and 2 are directed to pay a sum of Rs.5000/-(five thousand ) to the plaintiffs by way of cost within thirty days of this order. The impugned order passed by the learned court below is modified only to that extent. This revision application is disposed of accordingly. roy ( V. Nath, J.)