JUDGMENT S.N. Srivastava, J.
1. The writ petition is directed against the order dated 31.5.1986 allowing the revision and reversing the order passed by (rial court dated 28.9.1985.
2. The opposite party No. 2 Ram Narain filed a Suit No. 798 of 1982 for partition of his 1/3rd share on the ground that after death of his father, all the three brothers have got equal share. The suit was decreed ex parte on 3.4.1982.
3. An application filed by the defendant (present petitioner) on 22.9.1984 for recalling ex parte decree under Order IX, Rule 13 of the C.P.C., was allowed and ex parte decree was set aside by the order dated 28.9.1985 on the ground that no notice was served to the defendant.
4. A revision preferred by the plaintiff was allowed and the order passed by the trial court restoring the suit was set aside on the ground that no such application is maintainable as final decree was passed. Learned counsel for the petitioner contends that on the date of the final decree prepared (on 20.10.1984), an application for restoration filed on 22.9.1984 was pending. No notice was served to defendant who came to know only on 17/18th September, 1984, about the decree when the Amin visited in village, he further contends that the suit for partition was not maintainable in view of the fact that partition had already taken place about 25 years back mutually, the ex parte decree was liable to be set aside. Defendant is entitled to get opportunity to contest the suit. Order passed by revislonal court is vitiated in law as in the application for restoration ex parte decree was rejected only on the ground that final decree was prepared and confirmed.
5. The only question arises to be considered in the present case, is whether the preliminary decree could be set-aside after preparation of final decree if application to; set aside ex parte decree was pending.
6. Learned counsel for the petitioner relied upon a Division Bench case in Keshab Chandra Datta v. Ballygunge Estate Pvt. Ltd., AIR 1972 Cal 221, paragraphs 11 and 12 of the said judgment to support his contention that even after confirmation of sale, the application for restoration against ex parte decree under Order IX, Rule 13, C.P.C., is maintainable. If ex parte is set aside, confirmation of sale will automatically go.
7. Learned standing counsel urged that the order was rightly passed by the revisional court. No one appears on behalf of respondent Nos. 2 and 3.
8. It is well-settled in law that final decree cannot amend or go behind the preliminary decree and, therefore, it is a preliminary decree which determines the rights of the parties. The final decree is prepared according to the rights determined under the preliminary decree. This view is supported by Muthangi Ayyana v. Muthangi Jaggarao and Ors., AIR 1977 SC 292.
Para 5 of the said judgment is quoted below :
"..........The contention is based on the well-recognised proposition that a final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree."
9. In the present case, the application for restoration to recall the decree was already filed on 18.9.1984 much before the passing of final decree dated 20.10.1982. As the application for setting aside the decree was already pending where final decree was passed without taking note of pendency of the restoration application to recall the ex parte preliminary decree, the final decree will be set aside in the event the application to recall the ex parte decree is allowed and ex parte decree set aside.
10. In Phoolchand and Anr. v. Gopal Lal, AIR 1967 SC 1470, the Supreme Court has laid down the law that if there is dispute relating to preliminary decree, the Court has jurisdiction to decide even if the preliminary decree is passed.
Relevant para is quoted below :
"...............We see no reason why in such a case if there is dispute, it should riot be decided by the Court which passed the preliminary decree for it must not be forgotten that the suit is not over till the final decree is passed and the Court has Jurisdiction to decide all disputes that may arise after the preliminary decree."
11. Ex parte preliminary decree was passed on 3.4.1982. After having knowledge about the said ex parte decree, restoration application was moved on 18.9.1984 for setting aside the ex parte preliminary decree. Under Article 123 of Indian Limitation Act, Explanation mentions 30 days from the date of knowledge.
12. Explanation to Article 123 of the Indian Limitation Act, says that substituted service under Rule 20, Order V of the C.P.C., shall not be deemed to be a due service while applying for setting aside ex parte decree. The application was filed by learned counsel after having knowledge about ex parte decree. The revisional court has wrongly said that the substituted service shall be considered to be sufficient service.
13. Article 123 of Indian Limitation Act runs as follows :
"123. To set aside a decree passed ex parte or to hear an appeal decreed or heard ex parte.
Explanation.--For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908, shall not be deemed to be due service."
14. Revisional court wrongly held that after final decree is passed, ex parte preliminary decree cannot be set aside. The revisional court had completely overlooked the fact that application to set aside the ex parte decree was already pending consideration before the court below and the final decree was passed in Ignorance with the application to set aside the decree.
15. Revisional court has not taken into consideration that there is specific case of the defendant that a partition suit was not maintainable as partition has already taken place between the co-shares about 25 years back. This goes to the very root. If the plea of defendant prevails on trial, the suit may be treated non-maintainable.
16. The trial court was fully competent to entertain the application to set aside ex parte preliminary decree before the final decree is passed. My view is also supported by Anirudha Adhikari v. Amarendra Adhikari, AIR 1988 Ori 42.
17. For the reasons stated above, I am of the opinion that if ex parte preliminary decree is set aside on restoration application, the final decree, if passed pending restoration application between the parties, will also automatically go.
18. In Keshab Chandra Datta v. Ballygunge Estate Pvt. Ltd., AIR 1972 Cal 221, relied on by the petitioner was a case of restitution under Section 144 of the Code of Civil Procedure. The principle of law laid down. The same is quoted below :
".............It seems that if the ex parte decree is set aside on an application under Order IX, Rule 13 the principles of restitution laid down in Section 144 of the Code of Civil Procedure would be attracted and the fact that a conveyance has been executed by the Court in the circumstances stated above does not disentitle the defendant from seeking its remedies under Order IX, Rule 13."
19. Trial court rightly set aside ex parte preliminary decree passed without notice to the petitioner. In the result, the final decree will automatically be set aside in the present case. I agree with the order passed by trial court. Revisional court order is liable to be quashed for the reason mentioned above. I express no opinion relating to the case where application to set aside ex parte preliminary decree was moved after final decree was passed.
20. The writ petition succeeds and is allowed. The judgment and order dated 31.5.1986 passed by Vth Additional District Judge, Varanasi, allowing Revision No. 339 of 1987 is quashed. The trial court will pass appropriate order after giving opportunity to the parties within six months from the date of production of a certified copy of this order.