IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13549 of 2011 Ramanand Mishra Versus Madhukant Mishra & Ors ---------------------------------- 2. 23.08.2011 Heard the learned counsel for the plaintiff petitioner. This application under Article 227 of the Constitution of India has been filed for quashing the entire proceeding of Misc. Case No. 2 of 2011 pending in the court of Sub Judge-5th, Begusarai on the ground that the said misc. case filed by the respondents under Order 9 Rule 13 for setting aside a contested preliminary judgment and decree is not maintainable. The learned counsel for the petitioner submitted that since the judgment and decree passed by the court below is not ex parte so the misc. case is not maintainable. However, no such plea was taken before the court below. Admittedly, as has been submitted by the learned counsel for the petitioner the petitioner has already appeared in the said misc. case. In view of the above facts and circumstances of the case, under Article 227 of the Constitution of India the proceeding cannot be quashed. The petitioner may, if so advised, raise this plea before the court below in the misc. case. If such plea is raised the court below shall decide the same according to law. With the aforesaid observation, this application is disposed of. S.S. (Mungeshwar Sahoo,J.)