IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2081 of 2006 1. INDRADEO SINGH , S/o Late Juri Singh 2. Smt. Rajpati Kuer, W/o Indradeo Singh 3. Yamuna Singh , S/o Indradeo Singh 4. Badri Singh, S/o Indradeo Singh 5. Smt. Ramkumari Devi/ W/o Hridyanand Singh All residents of village Khandha Salempur, P.S. Barun, District - Aurangabad …… Petitioners Versus 1. CHANDRADEO SINGH , S/o late Juri Singh 2. Saroj Singh, 3. Vijay Singh 4. Raj Narayan Singh 5. Uday Kumar Singh 6. Om Narayan Singh All No. 2 to 6 are sons of Chandradeo Singh All residents of village Khandha Salempur, P.S. Barun, District - Aurangabad … Defendant 1st party – applicants- Opposite parties 7. Sachidanand Singh 8. Binod Prasad Singh 9. Pramod Prasad Singh 10. Vivek Kumar Singh All no. 7 to 10 are sons of Indradeo Singh 11. Hridyanand Singh All residents of village Khandha Salempur, P.S. Barun, District - Aurangabad … Defendant 2nd party – Opposite 2nd party – Opposite Parties ----------- For the petitioners : M/s D.K.Sinha, Sr. Advocate Lal Bahadur Singh, Advocate For O.P. Nos. 1 to 6: M/s Dr. Anshuman & Dhaneshar Pd. Gupta Advocates For O.P. Nos. 7 to 11: None ------ 7 28.01.2010 Heard learned counsel for the petitioner and learned counsel for opposite party 2 nos. 1 to 6. None appears on behalf of opposite party nos. 7 to 11. This civil revision is directed against the judgment dated 18.8.2006 passed by the Additional District and Sessions Judge, Aurangabad in Misc. Appeal No. 17 of 2002 / 9 of 2005, whereby the order dated 5.10.2002 passed by the Sub Judge 4th, Aurangabad, dismissing the Misc. Case preferred under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as “the Code”), has been set aside and the trial court had been directed to dispose of the original partition suit after serving the notices and hearing both the parties. Sri D.K.Sinha, learned Senior Advocate, appearing on behalf of the petitioners submitted that the opposite parties were present all along during hearing of the earlier Title Appeal No. 37 of 1988 / 10 of 1997 and a judgment of remand was delivered after hearing them. Thus, they were in full knowledge of the proceedings and 3 they should have appeared before the Court concerned on their own which they had not done as a result of which the suit was decreed in favour of the plaintiffs – petitioners. It is submitted that since no further evidence was led after remand, the proceeding cannot be said to be ex parte. Thus, the petition filed under Order 9 Rule 13 of the Code was itself not maintainable. It is submitted that the concerned Court had rightly dismissed petition filed under Order 9 Rule 13 of the Code holding that the decree concerned was not ex parte and, thus, the petitioners therein should have preferred an appeal. Learned counsel appearing for opposite party nos. 1 to 6 produced a copy of the judgment delivered in Title Appeal No. 37 of 1988 / 10 of 1997 dated 24.2.1998 at the time of hearing of this case, whereby the earlier decree passed in Title Suit No. 161 of 1982 was set aside and the matter was remanded back to the trial court for fresh consideration after deleting the name of 4 Mostt. Sundarbasia and after considering the written statements filed on behalf of defendant no. 8 Sundarbasia Devi and defendant no. 12 Hirdayanand Singh. It is submitted that under Order 41 Rule 26A of the Code while passing judgment of remand, the Appellate Court should have fixed the date of appearance of the parties. That not having been done, it was incumbent upon the Court concerned to issue fresh notice upon the parties and thereafter decide the matter in accordance with the judgment of remand. It is also submitted that though the decision of a Bench of this Court in Kishore Kumar Agrawal V. Basudeo Prasad Gutgutia & anr. reported in B.L.J.R. 1978(26) 573 was in connection with a matter of transfer of the case, however, the principle would also be applicable in the present case and in view thereof also a notice should have been issued upon the parties. The appellate court on consideration of rival submissions has come to the conclusion 5 that transferred court, in the present case, was duty bound to notice the parties of the suit and since the defendants did not appear before the court concerned after remand , the decree was ex parte. In view of the circumstances of the case, since the concerned Court on appreciation of the facts of the case and in the interest of justice had set aside the ex parte order and passed by the Sub Jude V, in Misc. Case No. 21 of 2000 and directed the trial court to dispose of the original partition suit after service of notice upon the parties and after hearing them, this Court does not find any jurisdictional error committed by the Court below warranting interference in its discretionary civil revisional jurisdiction. As a result, this civil revision is dismissed. Spd/- (Dr. Ravi Ranjan, J.)