1. This is an appeal against an order of the D.C of ??? rejecting an appln. by the present applt. for re-opening a partition case on the ground that no notice of the partition proceedings was served upon him & that he ass unaware of the proceedings until shortly before the date of his appln. The final orders in the partition case were passed on 24-1-1945. & the appln. equivalent to an apple under O. 9, R. 13 of the CPC, was preferred by the present applt. in My 1947. The learned D.C did not deal with his appln. on its merits, nor did be allow the appct. an opportunity for adducing evidence & as such the applt. was not is a position to do so in order to substantiate his case the learned D.C, in view of the fact that the officer who was in seisin of the partition case pissed an order during the pendency of that care this notices had been duly served, held that he had no jurisdiction to re-consider that matter & therefore, was not entitled to go into the quest on whether or not notices had been duly served on the appct. He accordingly rejected the appln. Hence this appeal.
2. In my opinion, the learned DC was clearly wrong in his met nod of dealing with this matter.
3. The fact that a previous D.C, during the pendency of the partition proceedings, had recorded an order, in the absence of this appct. that notices had been duly served was not final & it did not debar the D.C, from re-considering the matter on a proper appln. being filed in the nature of an appln. under. O. 9, R. 13 of the CPC, the learned D.C ought to have given the preen applt. an opportunity of substantiating his cane ??? should then have dealt with the appln. on its merits. For the ??? this case, it is conceded that the learned D.C's order dated 2-5-1947, was not strictly speaking, a proper order; but it was contended this in view of the report submitted to this Ct. by the D.C, no useful purpose would be served by directing a re-hearing. The learned D.C in reporting on the matter to this Ct. has referred to certain documents from which the learned D.C, is of opinion that notices ??? have hen served on the ??? applt. in the year 1944, if not earlier. I am not sire that the notices to which the learned D.C adverts in his report are conclusive on the matter & I am of opinion that this matter ought to be decided after hearing the applt. & after he has been given an opportunity to substantiate his case. The appeal is, therefore, allowed; the order of the learned D.C, dated the 2-12-1947, is set aside & the objection is remanded to him for consideration & disposal after giving he present applt. an opportunity to adduce, evidence, if be can in support of his objection. I mate no order as to costs.
4. Appeal allowed.