JUDGMENT S.K. Lakhtakia, M. - This is a second appeal against the order of the Additional Commissioner, Agra Division, Agra dated 26-5-1988 dismissing the appeal against the order of Sub Divisional Officer, Hathras dated 27-4-1987 rejecting the application for restoration moved by the appellant Jaswant Singh who was defendant no. 3 in the original suit. 2. Briefly stated the facts of this case are that the respondent no. 4 Hakim Singh had filed a suit for partition under Section 176 of U.P. Act No. 1 of 1951 in which judgement and preliminary decree were passed and the shares of the parties were determined. The plaintiff and all the four defendants were held to be having ?th share each since all the 5 parties are real brothers. Thereafter Ram Singh, one of the defendants, applied for preparation of final decree on 1-3-1984. Notices were ordered to be issued and a final decree was prepared on the basis of the quarras submitted by the lekhpal prepared on 13-12-1984. 3. Jaswant Singh the present appellant filed an application under order 9 rule 13 of Civil Procedure Code before the trial court on 21-9-1985. Hakim Singh had already filed an appeal against the final decree before the Commissioner on 9-1-1985 which was dismissed by the Additional Commissioner on 19-9-1985. 4. The trial court rejected the application of Jaswant Singh on the ground that since an appeal have been preferred against the final decree and had been dismissed by the appellate court hence no application for restoration was maintainable. 5. On appeal the same order was upheld hence this second appeal. 6. Heard the learned counsel for both the parties. Perused the record. 7. The learned counsel for the appellant argued that the record shows that no notice had been served on the appellant in the trial court on the application or Ram Singh and the final decree passed against him was ex-parte. In the appeal filed before the Additional Commissioner by Hakim Singh also no notice was served on the appellant, hence the decree passed by that court was also ex-parte but since the appeal was dismissed, hence the right of the present appellant were not effected by the order of the learned Additional Commissioner and he had every right to get the case restored by the trial court irrespective of the dismissal of the appeal of Hakim Singh. It was contended that since the (sic) ex-parte hence the right of the appellant in moving the restoration application was not effected, and the orders of the trial court and the lower appellate court are, therefore, against law and must be quashed. 8. Learned counsel for the respondent Ram Singh argued that since an appeal had been preferred against the final decree in which Jaswant Singh was party, hence he should have applied for restoration to the Commissioner and his application for restoration before the trial court was not maintainable. 9. The facts of this case are a little interesting. It is evident from the record that notice had not been served on Jaswant Singh before the final decree was passed, hence under order 9 rule 13 CPC be could move the application for restoration within the limitation prescribed by that rule, i.e. within 30 days from the knowledge of the order. The appellant had taken up the ground that he could learn about the final decree only on 19-9-1985 and, therefore, after getting the application typed he could file it on 21-9-1985 before the court. The ground taken by him was quite reasonable because in the appeal also no notice had been served personally upon him. 10. The argument of the learned counsel for the respondent could have had force if the appeal had been filed by Jaswant Singh himself and not by Hakim Singh. Jaswant Singh had no opportunity to get the appeal restored as well because it had been dismissed, hence respondent Jaswant Singh could do nothing except to have merely watched the result of the appeal which had gone against the appellant who was Hakim Singh and not Jaswant Singh. Consequently, there was only one remedy left to him and that was (sic) applied for restoration before the trial court. The ex-parte order of the appellate court could not bind the present appellant and, therefore, his application for restoration was wrongly rejected by the trial court on the mere ground that an appeal had been preferred against the final decree which had been dismissed. It was duty of the trial court to have examined the propriety and genuineness of the merits of the application for restoration and should not been dismissed it merely on the aforesaid technical ground. It was duty of the trial court to have examined the propriety and genuineness of the merits of the application for restoration and should not been dismissed it merely on the aforesaid technical ground. The learned Additional Commissioner also failed to examine the legal position and he also committed an error in dismissing the appeal. 11. In my opinion the grounds set up in the application for restoration are genuine and the application should have been allowed. 12. In the result, this appeal is allowed. The impugned orders passed by both the courts below are set aside and the application for restoration moved by Jaswant Singh on 21-9-1985 is allowed and the final decree passed by the trial court dated 18-12-1984 is set aside and the case is remanded back to the trial court to prepare final the decree alter hearing both the parties on merits according to law.