Legal Question in Civil Litigation in India

I being the plaintiff had filed a partition suit in the year 1998, claiming � share over the suit land. The defendants are the successors of other branch having � shares . There are nine members of defendants who are 3 brothers , 5 sisters and mother.

In the suit , notice was issued against the defendants . Court summons i.e. process surveyor report, shows that defendants ( brothers & mother ) who are residing in one house refused to receive the summons. Hence the process surveyor made a fixture. Order sheet of the court shows that postal receipts filed but there are four number of postal receipts available in record.The court considering the process surveyor report i.e. summon, against defendants 3 to 6 ( brothers & mother ) were held sufficient and were set exparte. Thereafter court considering postal receipt and A/D passed exparte against other defendants . Thereafter the suit was taken up for exparte hearing and accordingly it was decreed preliminarily declaring � share of plaintiff ( myself ).and other � share to all the defendants

I had filed petition for final decree. After getting notice one of the defendants No.5 filed a petition under order 9 rule 13 for setting aside the exparte preliminary decree, on the ground that no notice either through postal or by process surveyor was served on him, in the suit whereas his brothers & mother had admitted the decree and has approached the court for preparation of separate allotment sheet in their name as per preliminary decree.

Subsequently the misc case filed by defendant no-5, u/o 9 rule 13 was dismissed for default. Again defendant no-5 filed a misc case to restore the same u/s 151 CPC and accordingly it was restored.

The misc case filed by defendant no. 5 and the final decree was running simultaneously. The defendant no.5 had not filed any objection against the final decree petition and also not against the commission report. He had also not taken any steps to stay the final decree proceeding. No objection is filed against the report of Commissioner. Hence the report dt. 25.07.2005 submitted by Sri Nidhiram Behera S.A. is accepted and consequently the preliminary decree on dt. 10.02.2003 is made final. The commissioner report map and allotment sheets do form part of the final decree. Plaintiff is directed to file required stamp paper for the final decree but signing of the decree is to wait final disposal of misc case no. 34/03.

That nobody had filed any objection against commission report.

While the final decree was going on at that time on 20/09/2009 said mis case was dismissed for default. So, thereafter I had applied the court to drawing up the final decree by filing stamp paper.

Accordingly on 03/12/2009 the court decreed the suit finally by drawing up it on stamp paper.

But on 4/12/2009 the said defendant no 5 was died.

After his death his son daughter and widow have filed a fresh mis-case vide no 45/2011 u/o 9 rule 13 for setting aside preliminary decree and final decree on the ground that they had no knowledge about the suit and decree. They also stated that they are the predecessor of defendant no-5, who was not noticed in the suit.

Be it here mentioned that the son of the defendant no-5 had sworn affidavits in the petition filed by his father u/o 9 rule-13 and section-5 of the limitation act in the year 2003 vide misc case no-34/2003 as stated above .

In the meantime one brother admitting the preliminary decree and final decree have filed a fresh partition suit where in the heirs of defendant no-5 are added as defendants along with all the defendants for their allotted � share.

On the other hand 1/2 share allotted to me has also been partitioned among my sons, wife, daughter and myself in the civil court.

The defendant no-5 and his legal heirs have not raised any objection in their petition in respect to the shares given in the preliminary decree.

(1) Now in what way, the preliminary decree and final decree shall be valid?

(2) What plea should be taken by me to dismiss the misc case filed by the successors of defendant no-5?

When the defendants are not disputing the shares allotted to them, is it necessary to set aside the exparte preliminary decree?

Kindly give me some citation in my favour i.e, in favour of the plaintiff to dismiss the petition filed u/o 9 rule-13 keeping in view of the aforesaid facts of the case.

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