ORDER Y. B. Suryavanshi, J.- 1. The appellants have preferred this appeal against the orders dated 27-6-86 passed by Second Addl. Judge to the Court of District Judge, Jabalpur, in M.J.C. No.16 of 84 whereby their application, dated 16-2-84. purporting to be under order 9, rule 13 CPC for setting aside the exparte final decree in Civil Suit No. 14-A/81 was dismissed. 2. A perusel of the record and the submissions by the learned counsel on both sides echo the clattar of the warring parties in this civil litigation which originated in the year 1952. It seems to be a two generations suit yet the controversies vertically or horizontally are going on. 3. One S. S. Sahiblal, the father of respondents 1 to 4 filed a civil suit No. 12-A/52 in the Court of First A.D.J., Jabalpur for partition and separate possession of his share against the respondents 5 to 8 and the appellants. During the pendency of proceedings, Sahiblal died, and respondents 1 to 4 were brought on record as LRs. The trial Court passed a prelimininary decree on 29-7-55 declaring the shares of certain parties. The High Court in F. A. No. 139/55 modified the decree and also taking into consideration the fact of Smt. Khilonabai having died during the pendency of the appeal, ordered that one-third share would go to the branches of Munnalal, Ramchand and Rajkumar each respectively. An appeal was preferred before the Supreme Court, and decree passed by the trial Court was restored subject to the modification with interest declared in favour of Khilonabai i.e. one fourth share would devolve upon her sons Munnalal and Ramchand, to the exclusion of her grand-son Rajkumar. Thus, as per the preliminary decree coafirmed by the Supreme Court, the plaintiff Sahiblal had one fourth, Munna lal, his wife and sons had 5/24th, and Ramchand, his wife and sons had one fourth and Rajkumar had one fourth share. Further, to this, Ramchand and Munnalal got one-eighth share each out of the total share of Mst. Khilonabai. 4. For effecting the partition by meets and bounds and to handover' possession to each of the respective parties, Shri G. P. Choube, Advocate was appointed as Commissioner who submitted his report on 1-7-68. S. S. Sahiblal preferred objections to the said report which was dismissed in default, as per orders dated 6-2-69 passed in M.J.C. No. 20 of 68. 4. For effecting the partition by meets and bounds and to handover' possession to each of the respective parties, Shri G. P. Choube, Advocate was appointed as Commissioner who submitted his report on 1-7-68. S. S. Sahiblal preferred objections to the said report which was dismissed in default, as per orders dated 6-2-69 passed in M.J.C. No. 20 of 68. The trial Court refused to restore the objections filed. S. S. Sahiblal then preferred M (F)A. No. 71/69. Sahiblal after obtaining preliminary decree as finalized by the Supreme Court had applied for possessing a final decree for partition. The parties were directed to file affidavits on 4-10-83 and the Sahiblal was also expected to file affidavits in support of the objections to the Commissioner's Report, containing proposal for final division of movable and immovable property. The trite Judge waited for the said Sahiblal and his counsel till about 4.0' clock and ultimately passed an order to the effect that Sahiblal's objections to the Commissioner's report are dismissed in default. All the claimants had effected a compromise with respect to the division of property amongst themselves, and plaintiff was not a party to the compromise. The trial Court held, that the compromise was lawful and accordingly directed the same to be recorded and a decree in terms of the compromise be passed. This order was the subject matter of the Civil Revision No. 278/69. By a common order, the Civil Revision No. 278/69 and M (F)A No. 71/87 were decided, holding, that there was sufficient cause made out by Sahiblal and he was entitled to have his objections to the report restored to file. Pausing here, it may be mentioned that in Paras 4, 6 and 7, there are certain observations to the effect that further proceedings without suitable amendment of the perliminary decree will be infructuous at present. With those observations, he matter came back to the trial Court to take into con8ideration the aforesaid observations by the High Court and to pass a final decree. 5. Other salient features in the case are that on 13-8-68 there was a compromise between those appellants and respondent No.6 Nandan Kumar. Ishwar Prasad (deceased) and respondent No.5 Smt. Pyari Bahu according to which it was agreed upon that the appellants will pay Rs. 5. Other salient features in the case are that on 13-8-68 there was a compromise between those appellants and respondent No.6 Nandan Kumar. Ishwar Prasad (deceased) and respondent No.5 Smt. Pyari Bahu according to which it was agreed upon that the appellants will pay Rs. 89,000/- to them, so far as the claim for movables or any cash amount is concerned (Document No. A in the reply of the appellants to the preliminary objection filed by respondent Nos. 5 and 6) vide order-sheet dated 4 -10-68, the said compromise Was accepted as lawful (copy of the document No. A- 1 filed by the appellants). Receiver was also asked to submit his accounts. The preliminary decree was drawn on 4-10-68. 6. It is alleged by the appellants that in terms of the said compromise (dated 13-8-68) appellants paid Rs. 12,000/- to Nandan Kumar, Pyari Bahu and Ishwar Prasad on 29-6-69 (Receipt Document A-2); that again on 14-12-71, a compromise was entered into between the appellants and the said respondents 5&6 Pyari Bahu, Nandan Kumar & Ishwar Prasad a-mending the earlier compromise dated 13-8-68 since one property was left to be included which was later on included. (Copy of compromise dt. 14-12-71 Document A-31). The plaintiff Sahiblal was left out as a party in the said compromise and therefore, another compromise was entered into with plaintiff Sahiblal by all the parties on 16-12-71 in view of the observations by the High Court in orders dated 15-12-69 in Civil Revision No. 278/69. (High Court's order Document-A-4 and compromise application dt. 16-12-71-Document Appellant-5). The order sheets of the even dates 16th and 17th December, 1971 refer to ¢he compromise. 7. That again on 17-12-71, a written agreement was entered into between the appellants and respondents 5, 6 and Ishwar Prasad which deed was got registered on 18-12-71. It was found insufficiently stamped and hence a Revenue Case was registered in the Court of S.D.O., Jabalpur and the document was impounded and the charges were paid by the appellants (copy of Agreement dated 17-12-71 Document A-6). 8. It was found insufficiently stamped and hence a Revenue Case was registered in the Court of S.D.O., Jabalpur and the document was impounded and the charges were paid by the appellants (copy of Agreement dated 17-12-71 Document A-6). 8. That, again, on 21-12-71 compromise petition was filed in the Court (Document-A-7) and by this registered-deed it was agreed by Nandan Kumar and others, that amounts due to or against the appellants will be paid by Nandan Kumar and others to Sahiblal, and they further assured and promised the appellants that they need not attend the Court and the matter will be fought by them only. The amount of Rs.89, 000/- was to be paid by the appellants in light yearly instalments. The appellants contended that on 31-12-71 they paid Rs. 11,000/- (Document Appellant-8). Then there had been exchange of notices and replies between the parties. 9. On 21-12-72 there had been a partition between the respondents 5, 6 Ishawar Prasad and Kamlaram, first wife of Nandan Kumar for herself and children (Document No. A-9). Accordingly, Rs. 66,000/- was to be paid to Ishwar Prasad, by the appellants (Document A 10). There was further compromise by the appellants with Ishwar Prased, in which the remaining amount was settled and finalized for Rs. 41,000/- which they paid to Ishwar Prasad (Compromise dt. 30-5-79 Document Appellant-11). 10. The crucial date is 8-5-72. Order-sheet Document-A-12, Which records that the compromise petition dt. 16-12-71 and 21-12-71 have been verified and the learned Judge is satisfied about the legality of the compromi3e terms. Therefore, it is ordered that a preliminary decree be drawn in terms of the compromise petition dated 16-12-71 and 21-12-71, which shall form part of preliminary decree. 11. The other feature is said to be that there were proceedings for award before the Arbitrator Shri S. K. Jain, Third Addl. Sessions Judge, Jabalpur who gave an order on 15-7-80 in favour of the appellant. Thereafter, S. S. Nandan Kumar and Smt. Pyari Babu objected the award and also claimed their share in it but the objection was rejected by the Court on 8-5-81. Against that order, they filed M. P. No. 856/81 in the High Court which is still "subjudice" (According to appellants this fact was also concealed by the respondents and till the decision of that petition no final decree could have been passed). Against that order, they filed M. P. No. 856/81 in the High Court which is still "subjudice" (According to appellants this fact was also concealed by the respondents and till the decision of that petition no final decree could have been passed). The appellants further alleged that according to the order sheet dated 8-5-72, it was ordered that the compromise petitions dated 16-12-71 and 21-12-71 shall form part of the decree and it is to be framed accordingly, but the appellants now find that the part of the compromise regarding the movables and payment of Rs. 89,000/- do not find mention in the final decree dated 3-1-83. 12. In the above said matrix of facts and law, there were three offshoots : (i) the appellants filed an application, dated 16-4-84, under O. 9, R. 13 r/w section 151CPC for setting aside exparte final decree dated 3-1-83 against them and to modify the decree as per compromise between the parties and as directed vide order sheet dated 8-5-72. This was registered as M. J. C. No. 16/84. (ii) The appellants filed another application u/s 151, 152, 153 CPC. Registered as M. J. C. No. 15/84, for amending or modifying the said decree. (iii) The appellants also filed application for stay in the suit and the execution proceedings initiated by the defendants. 13. The ground in M.J.C. No. 16/84 is, that the appellants had compromised with the present respondents after executing some registered document in respect of movable property and had also made payments (Refer. Paras 7, 8 and 9 supra) and after execution of the registered documents the respondents further promised and assured the appellants that now they will settle the matter in the Court and they (appellants) need not attend the Court and yet allegedly they suppressed the other documents and did not bring them to the notice of the Court and accordingly got final decree passed by practicing fraud. 14. Secondly, the appellants' counsel in the litigation was Shri SK. Seth (as the Lordship then was) who was elevated to the Bench on 27-11-78, and could not appear for them, and thus neither the appellants appeared nor their counsel and the appellants had any notice or intimation about the proceedings thereafter. 14. Secondly, the appellants' counsel in the litigation was Shri SK. Seth (as the Lordship then was) who was elevated to the Bench on 27-11-78, and could not appear for them, and thus neither the appellants appeared nor their counsel and the appellants had any notice or intimation about the proceedings thereafter. Thus, the appellants had no notice of the final decree which was framed behind their back, which is also said to be a mistake apparent on the face of the record. The application under order 9, rule 13 CPC filed by the appellants was supported by an affidavit by the appellant Rajendra Kumar, son of Ramchand. Furthermore, on the same date, an application was also filed which purports to be u/s 5/7 of the Indian Limitation Act, wherein, it was mentioned that the applicants (appellants) bona fide did not take part in the proceedings, thinking, that since the matter has been compromised with them, they had nothing to pay and that there being no counsel after 27 -11- 78, no notices of the applications filed by respondents Nandan Kumar and another, were given to the appellants. Thus, there is suppression of facts. This application was also supported by an affidavit. 15. Before the trial Court in M.J.C. No.16/84. Nandan Kumar and N. A.-Smt. Pyari Babu filed their written objections on 30-10-84, separately, but the contents are virtually the same. Those N. As raised objections viz. that the Judgment in open Court has been pronounced as per provisions in C.P.C and was dated and signed in open Court, and thereafter, after publication on Notice Board a decree was drawn up. The decree was required to be engrossed on a non-judicial stamp paper of the value of Rs. 27, 212/- and para 7 of the Judgment provided that one-third of that amount has to be borne by Rajkumar, Ramchand all defendants and Pyari Bahu and Nandan Kumar, as ordered. Rajkumar, did not deposit one-third share. Therefore, the decree has not, so far, been drawn as ordered. In the execution proceedings the appellants had prayed for stay. That the trial Court rejected the application for urgent hearing of the execution case on 4-10-84 and directed that the execution case be linked up in the M.J.C. Nos. 15/84 and 16/84 for hearing and also with the main suit. In the execution proceedings the appellants had prayed for stay. That the trial Court rejected the application for urgent hearing of the execution case on 4-10-84 and directed that the execution case be linked up in the M.J.C. Nos. 15/84 and 16/84 for hearing and also with the main suit. The further objection is that in the application under order 9, rule 13 CPC, there is not a whisper to the effect that those four defendants were "prevented from appearing by sufficient cause, when the suit was called on for hearing", and the provisions of section 5/17 Limitation Act are foreign to application under order 9, rule 13 CPC; and thus the application is untenable. Similarly, the application registered as MJC No. 15/84 is also wholly untenable in view of order 20, rule 3 except as provided by section 152 CPC of Review. In the instant case, no review has been filed. 16. On a perusal of the order-sheet in MJC 16/84 in particular from 30-10-84 onwards, it is observed that it was adjourned on about 23 hearings for "arguments". This includes also the dates on which the Presiding Officer happened to be on leave. According to order-sheet dated 20-6-86, the applicant was absent, the learned counsel for the NA No.1 was present, who was heard and the case was fixed for order on 26-6-86. On 26-6-86 it was adjourned to 27-6-86 and the impugned orders were passed on 27-6-86 which have been challenged in this appeal. 17. Before the arguments in the appeal, were concluded, the respondents 5 and 6 filed "Preliminary objections" in which the historical background bas been narrated besides the objections taken therein. Many documents were filed as Annexure. On the other side, the learned counsel for the appellants filed a written reply to those objections, in general as also para wise reply, accompanied by documents referred therein. 18. According to the objections by respondents, from the end of 1976 the appellants who were defendants had deliberately left attending the Court and despite notice, did not come. They were noticed for contributing their one third share. In MJCs summons and notice was served on 13-1-84 but they had been creating hurdles. 18. According to the objections by respondents, from the end of 1976 the appellants who were defendants had deliberately left attending the Court and despite notice, did not come. They were noticed for contributing their one third share. In MJCs summons and notice was served on 13-1-84 but they had been creating hurdles. They had also sought time; Hon'ble Shri Justice S. K. Seth was elevated to the Bench on 27-11-78 but he had stopped attending the Court "even for two years prior to the elevation", [Para (iv) of objections-application]; that the appellants had filed an application registered as MJC 1/85 for prosecuting the respondents. The application was u/s 195, r/w 340 Cr. P. C. which was dismissed. Appellant's Civil Revision No. 512/86 was also dismissed on 9-4-87; that the decisions therein would operate as "res judicata" in the present proceedings: the absence of appellant No. 1is said to be intentional. Various other pleas of estoppel res judicata, Waiver, abuse of the process of law have been raised. On other hand, in the reply of the appellants, those submissions are denied and disputed. 19. Order 9, rule 13 reads as follow: "Order 9, rule l3-Setting aside decree ex-parte against defendant : In any case in which a decree is passed exparte against at defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served. or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be Set aside as against all or any of the other defendants also. Provided further that no Court shall set aside a decree passed exparte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Provided further that no Court shall set aside a decree passed exparte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation - Where there has been an appeal against a decree passed exparte under this rule and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that exparte decree. 20. In my view, "the merits of the case" as parties have tried to raise before this appellate Court are not a relevant for consideration. Even before the trial Court, as the proceedings under this provision are original proceedings independent of the suit, the merits are not a relevant consideration, except to the limited extent they are relevant to the points for decision under this provision. The principal point for consideration in these proceedings are whether there was "sufficient cause for non-appearance at hearing ?'. According to the amended provision, the applicant as to prove that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. To recall, consistently the case was fixed for arguments only and on 20-6-86, only one counsel was heard and order was passed as stated before. Paras 1 and 2 of the impugned orders are introductory. In Para 3 what is said is, that on 3-1-83, final decree has been passed and the application under order 9, rule 13 CPC bas been filed on 16•6•84 and is time-barred. The order further records that the only ground mentioned in the application is that the counsel was elevated on 27-11-78 and thereafter, he did not appear. That, in fact even after 27-11-78 there has been proceedings before final decree" as passed (What are those ?). Therefore, there is no sufficient cause; that no evidence has been adduced to support the application. Hence, it is dismissed. The learned counsel for the appellants Sarvashri K. L. Issrani and R. S. Tiwari urged, that the trial Court never communicated that evidence be led. Therefore, there is no sufficient cause; that no evidence has been adduced to support the application. Hence, it is dismissed. The learned counsel for the appellants Sarvashri K. L. Issrani and R. S. Tiwari urged, that the trial Court never communicated that evidence be led. That, no opportunity for adducing evidence was given particularly when the case lingered for such a long period; that, in fact, their applications were supported by affidavits and there were no counter affidavits by respondents 5 and 6. On the other hand, the learned counsel Shri K. P. Munshi for respondent No 5, and Shri Sanyal for respondent No. 6 (who, later on withdrew his power) had urged, that the appellants could have expressed to the Court that they want to adduce evidence; the t the application under Article 123 is to be filed within 30 days from 3-1-83 i. e. it was to be filed on or before 2-2-83. but it has been filed on 26-4-84, after a delay of 14 months 14 days. Therefore, it has to be dismissed, in limini, in view of the mandatory inhibition u/s 3 (1) of the Limitation Act. It was also submitted that the appellants are abusing the process of law; and were aware of the proceedings; and were in fact watching the progress through Mukhtiyar or otherwise. On the other band, these contentions are denied by the appellants. So far as the delay is concerned the appellants have given two fold reasons. One of those only bas been, casually and in passing, has been referred in the Impugned orders there is no such finding by the trial Court that the appellants were aware of the proceedings and had knowledge. At this stage this Court cannot accept the submission that the appellants did not intend to pay the decretal amount to answering respondents. Hence, they have taken shelter behind false and vexatious applications. 22. At this stage this Court cannot accept the submission that the appellants did not intend to pay the decretal amount to answering respondents. Hence, they have taken shelter behind false and vexatious applications. 22. On the other hand, except for the date of elevation, in absence of any evidence there could not have been any finding as to from which date of hearing the appellants' counsel refrained from attending the Court because the contention of the contesting respondents is that the appellants' counsel had stopped appearance in the Court "two years prior to elevation"., Similarly, when the appointment of any Mukhliyar is also a disputed fact, it is difficult to accept the contention that the appellants, from a distance, were watching the proceedings but Came late only to create hurdles in execution proceedings. Whether the absence of appellant No.1 was intentional or mala fide, or it was because of being misled (due to alleged fraud practised on them) are also disputed questions which could not have been decided without materials and evidence placed before the trial Court. 23. Even during the course of arguments, decisions were referred. But as stated above, in those proceedings, the merits of the original case are not to be considered. However, I may refer to Miss Devi Ramchand Vaswant v. S. B. Bastikar AIR 1968 Bom. 57 . It was held, that "sufficient cause" is not different from "good cause". If a party is unaware of the date of hearing and the unawa-reness is not due to any fault of his, in the circumstances it was held, good or sufficient cause for non-appearance under order 9, rule 13 CPC. 24. The learned counsel had stated that as there was no counter affidavit by the other side, the affidavit filed by the appellants could have been relied upon. In Chunnilal v. Chhota Bhai Moti Bhai (Firm) 1966 JLJ-SN 146. it was held, that an affidavit is evidence if the parties agreed to have decisions on affidavits alone. It would be permissible if there is mutual agreement. The Court is bound to allow the parties to lead evidence. That was a case where the respondent had applied for setting aside the exparte decree. The application was supported by an affidavit which was controverter by the plaintiffs' affidavit. The respondent then filed supplementary affidavit and the trial Judge decided merely on basis of those affidavits. The Court is bound to allow the parties to lead evidence. That was a case where the respondent had applied for setting aside the exparte decree. The application was supported by an affidavit which was controverter by the plaintiffs' affidavit. The respondent then filed supplementary affidavit and the trial Judge decided merely on basis of those affidavits. In the in start case, before me, after the written objections/ replies filed by the contesting respondents/NAs, points for decision/issues could have been framed, and then it could lave been considered whether the parties wanted to lead necessary evidence thereupon. It further seems that the applications for amendment, etc. are still pending in the trial Court. In the absence of materials on record and the nature of order sheets also referred above, the impugned orders were improper and are liable to be set aside. 25. For the aforesaid reasons, this appeal is allowed, and the impugned orders dated 77-6-86 are set asice. The case is remitted to the trial Court for framing issues/points for decision, and after allowing the parties to lead requisite evidence to decide the application according to law. The counsel for the appellants are asked to appear in the trial Court (i. e. Second ADJ, Jabalpur) on 27-11-89. The learned counsel for the respondent No.5 Shri K. P. Munshi has stated that his power came to end since Smt. Pyari Babu died after the conclusion of hearing before the pronouncement of the Judgment. Hence, this order is passed in view of order 22, rule 6 CPC. Shri Sanyal, Advocate, who appeared for the respondent No. 6 had withdrawn. Therefore, it is not possible to give direction envisaged under order 41, rule 26-A CPC. Therefore, trial Court will take further proceedings after noticing the parties concerned.