IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21927 of 2011 Md.Tajuddin Ahmad Khan Versus Gulraj Khanam & Ors ---------------------------------- 03. 20.12.2011 Heard the learned counsel, Mr. Anish Chandra Sinha on behalf of the petitioner. The petitioner has filed this application under Article 227 of the Constitution of India against the order dated 09.02.2011 passed by 2nd Munsif, Ara in Misc. Case No.2 of 2011 whereby the learned Court below admitted the Misc. Case No.2 of 2011. The learned counsel for the petitioner submitted that the Judgment and Decree in partition suit was passed 12 years ago and the learned Court below condoned the delay without hearing the petitioner. From perusal of the application filed by the respondent in the Misc. Case, i.e. under Section 5 of the Limitation Act, it appears that it has specifically been stated that the respondent got the knowledge of the ex- parte decree on 19.12.2010 and the Misc. case under Order 9 Rule 13 C.P.C. has been filed within 30 days from the date of knowledge as provided under 123 of the Limitation Act. According to the learned counsel for the petitioner everything was done in presence of the respondent and the respondent had the knowledge - 2 - about the partition suit and the final decree and also Takhtabandi and delivery of possession also but the application for restoration has been filed after 12 years deliberately making vague allegation. From perusal of the impugned order, it appears that the learned Court below only admitted the Misc. case. After notice, the petitioners have also appeared. Now, therefore, the question whether notice was served on the respondent or that every thing was done in presence of the respondent will be decided in the Misc. case itself after recording the evidences of the party. At this stage on the basis of affidavit, the question of fact cannot be gone into. I, therefore, find no reason to interfere with the impugned order by which Misc. case has only been admitted for final hearing. Accordingly, this writ application is dismissed. The petitioner may raise all these questions which are being raised before this Court in the Misc. case before the final hearing. With this observation, this writ application is disposed of. Sanjeev/- (Mungeshwar Sahoo,J.)