1961 (9) TMI 106

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....referred by the defendant and the appellate Court modified the preliminary decree. On receipt of the partition scheme from the revenue Court the learned Munsif passed another order sending back the papers to the Revenue Court for the preparation of a fresh partition scheme according to the amended decree. A fresh partition scheme was received from the Revenue Court but no notice of it was given to the defendant or his counsel, and the learned Munsif passed a final decree in terms of the fresh partition scheme on 13-8-1957. 3. An application was made by the defendant under Order 9, Rule 13, C.P.C. for the setting aside of the final ex parte decree, and the main contention was that the final decree having been prepared without notice shoul....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ounsel have not been able to cite any authority directly on the point. There is also no provision in Section 54 or Order XX, Rule 18, C.P.C. or in the rules framed under the U.P. Z.A. and L.R. Act that a notice should go to the parties after the partition scheme is received; out all the same absence of such a provision does not give the Court a power to pass a final decree without notice to the parties. The argument of the continuation of the suit has also no bearing on the point Because after the passing of the preliminary decree the proceedings for final decree remained interrupted in the Court of the Munsif because papers were sent to the revenue Court for preparation of the partition scheme. On the principle of natural justice the parti....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....of a final decree In a partition suit, the Court should keep in mind the rights of the parties. There may not be any specific provision in law for giving notice for the preparation of a final decree, yet the principles of natural justice do require that such a notice should be given. A final decree which has been prepared without notice can always be set aside by means of an application under Order 9 Rule 13 because the final decree in that sense is an ex parte decree. Moreover, the court has also inherent jurisdiction to undo the wrong committed by it. 7. It was also contended that the case would fall under part II of Article 164 of the Limitation Act because according to the arguments of the learned counsel the expression "Summons" in ....