Judgment Binod Kumar Roy, J. The appellants assail an order rejecting their application under order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as the 'Code'). 2. The appellants asserted to this effect. Title Suit No. 271 of 1983 was filed by Respondent No.1 for declaring that the judgment and decree dated 26.8.1985 of Title suit No. 21/80 of the court of the 2nd Addl. Subordinate Judge, Bhagalpur and the proceeding in Title Execution No. 12/77 are void and nullity having been obtained by fraud suppressing the entire processes of the court and without any jurisdiction. A further declaration was also sought that the delivery of possession and realisation or cost awarded are also illegal, void and without jurisdiction. Except defendant nos. 21 and 25 out of the defendants-second party no other defendant had appeared in that suit. On 11.4.1986 the appellants filed an application under Order IX Rule 13 read with section 151 of the Code for setting aside the decree aforesaid on the aforesaid grounds which was registered as Misc. Case No. 8/86. An objection was filed under section 47 of the Code in Execution Case No. 12/77, arising out of the decree in Title Suit No. 21 of 1976, which was registered as Misc. Case No. 24 of 1978 but was dismissed on 8.1.1982. Against the said order M.A. No. 24 of 1982 was filed in this Court, which after hearing, was dismissed on 29th July, 1983. The decree in Title Suit No. 21 of 1986 was satisfied by putting the plaintiffs in possession of the land and by recovery of the cost of that suit but in order to have illegal gains the suit in question was filed of which the appellant had no knowledge as the summons and registered envelopes were not served on them. They came to know of the decree on 20.3.1986 from one Keso Podder their sipahi who is looking after the cultivation. The appellants became astonished to learn and thereafter obtained information through their karpardaz Ugra Mohan Pandey on 1.4.1986. On 3.4.1986 information was given about the decree. Having came to know of these facts, they got the record of the suit inspected through Sri Sriram Tiwary, Advocate on 4.4.1986. The appellants became astonished to learn and thereafter obtained information through their karpardaz Ugra Mohan Pandey on 1.4.1986. On 3.4.1986 information was given about the decree. Having came to know of these facts, they got the record of the suit inspected through Sri Sriram Tiwary, Advocate on 4.4.1986. On inspection it transpired that the alleged summons were received by one S.C. Jain on 3.2.1984 at 156, Radha Bazar Street, Calcutta even though there was no such person legally empowered to receive summons on their behalf, and that on 22.6.1984 another summon was received by one Ajit Singh, who is not known to them. The appellants were residing in Bangkok (Thail land) during those days. On account of the ex-parte decree, they have sustained loss which cannot be compensated in terms of money. It would be in the interest of justice and equity to set aside the ex-parte decree. 3. Original records of the suit were called for. Ultimately by order dated 21.6.1986 the Misc. Case was admitted and the plaintiffs and other defendants were noticed. 4. On 2nd July, 1986 Respondent-first party herein (who was plaintiff opposite party first party to the Misc. Case) filed an application praying to hear the maintainability of the Misc. Case and jurisdiction and decide those issues as preliminary issues. 5. The respondent first party alleged that the decree in Title Suit No. 21 of 1966 was obtained fraudulently against his father Shreedhar Sah, who had died long before the institution of the said suit; that the Misc. Case No. 24/78 was erroneously dismissed after holding that Shreedhar Sah had died before the institution of the suit; that Misc. Appeal No. 24 of 1982 was disposed of by this Court by an order dated 29.7.1983 on a finding that the matter regarding the decree being nullity having passed against a dead person requires investigation in a separate suit and not by the executing court and in this backdrop Title Suit No. 271 of 1983 was filed; that the said snit was decreed on contest by some of the defendants and, thus, cannot be set aside under Order IX Rule 13 of the Code of Civil Procedure. 6. 6. A rejoinder was filed by the appellants stating, interalia, that the other defendants had no right, title, interest and possession in the lands in question; that some of the defendants of Title Suit No. 21 of 1966 has preferred First Appeal No. 665 of 1977 before this Court; and that the proposed preliminary issues are not maintainable. 7. The parties, however, started leading evidence. The appellants examined Keso Poddar as A.W. 1, Abhay Kumar Sinha as A.W. 2 and Arun Kumar Singh as A.W. 3. They also got exhibited the information slip dated 1.4.1986 as Ext.-1 and the inspection slip dated 3.4.1986 as Ext.-2. 8. Respondent No. 1 examined Tripurari Nath Lal, an Advocate's clerk as O.P.W. 1, Pankaj Kumar Sinha, advocate's clerk as O.P.W. 2, Mahesh Mandal as O.P.W. 3, Subodh Kumar Sinha, an advocate's clerk as O.P.W. 4. Ram Payare (summons bellif of Small Cause court, Calcutta) as O.P.W. 5, Bhola Mandal, a clerk, as O.P.W. 8. They also exhibited the vakalatnama dated 3.4.1986 in Title Suit No. 271 of 1983 filed on behalf of the appellants as Ext-A, writings on the summons for settlement of the issues in the said suit as Ext.-B, report on the said summon as Ext. C and the summon itself as Ext.-D. 9. The court below rejected the application of the appellants observing/holding as follows:- (i) The present Misc. Case is fit to be dismissed as not maintainable as in the petition for restoration the date of decree is written as 28.8.1985 even though there was no decree of the said date: (ii) In paragraph 11 of the petition for restoration it has been stated that the applicants got knowledge about the decree through Keso Poddar on 20th March, 1986 whereas in paragraph 12 it has been stated that they got knowledge on 1.4.1986 through their karpardaz Ugramohan, who has not been examined; (iii) It is stated that the records were inspected by Sri Sriram Tiwary, Advocate but he, too, was not examined; (iv) Misc. Case was filed defective inasmuch as it was filed by Abhay Kumar Singh (A.W. 2) who has no power of attorney. Case was filed defective inasmuch as it was filed by Abhay Kumar Singh (A.W. 2) who has no power of attorney. It has not been stated as to whether the said Abhay Kumar Singh Was authorised to file power on their behalf: (v) The allegation that the applicants reside in Bangkok (Thailand) is not correct inasmuch as in their vakalatnama (Ext.-A) they have given their address at Calcutta. No document has been filed to show that they on the material date and time were present in Bangkok; (vi) None of the applicants have come in the witness box to support their case and it was for them to deny the Service of summons on them and state whether S.C. Jain, who had accepted notices for them, was not their agent authorised to accept their summons; (vii) The applicants have not even signed the petition and (viii) The applicants have failed to show any reasonable ground or sufficient cause for setting aside the decree. 10. Mr. S.K. Mazumdar, learned counsel appearing on behalf of the appellants, submits as follows :- (i) The reasons given in the impugned order are either irrelevant or based on error of record. (ii) The moot question which was required to be considered was whether the notice were served on the appellants; and whether they had knowledge of the suit? (iii) The inspection slip (Ext.-2) showed that Sri Sriram Tiwary, Advocate of the applicant had inspected the records and it was not necessary for the appellants to examine him. (iv) The Misc. Case was filed by the appellants and not by Abhay Kumar Singh, who was holding power of attorney on their behalf which fact was not in' dispute. From his cross-examination it appears that the sole question was whether the power of attorney in his favour is registered or not. The power of attorney in favour of Abhay Kumar Singh was not required to be registered, as laid down by the apex court in the case reported in A.I.R. 1979 S.C. 553 (paragraph 19). (v) At the time of filing of the vakalatnama the petitioners were at Calcutta whereas at the time of the pendency of the suit they were at Bangkok. (vi) The appellants during the hearing of the Misc. (v) At the time of filing of the vakalatnama the petitioners were at Calcutta whereas at the time of the pendency of the suit they were at Bangkok. (vi) The appellants during the hearing of the Misc. Case were at Bangkok and not at Bhagalpur 'or' even at Calcutta and, thus, they could not examine themselves, (vii) Simply because an incorrect date of decree was mentioned in the application, the Misc. Case could not be dismissed as not maintainable. (viii) There was no inconsistency in stating facts in paragraphs 11 and 12 of the application in regard to the knowledge of the decree from two persons firstly on 28th March, 1986 and secondly on 1.4.1986. (ix) Law does not require that the appellants should sign their petition which was signed by their learned counsel. (x) The court below committed an error in not discussing the evidence of A.Ws. 1 and 2 in view of his observations recorded in paragraphs 11 to 15 which are not supportable in law. (xi) The court below has greviously erred in not appreciating the fact that the plaintiff-respondent no. 1 was at best 'interested in only' about 5 acres of land mentioned in Schedule-C of the plaint of Title Suit No. 21 of 1966 and not in regard to remaining lands measuring about 400-bighas. (xii) There has been apparent failure of justice. Justice requires that the impugned order be set aside and the application as well as the appeal of the appellants be allowed with cost. 11. Mr. Mukundji, learned counsel for the respondents, in reply, submits as follows:- (i) The observations made and the findings recorded by the learned Subordinate Judge are correct. (ii) As required under order IX Rule 13 of the Code of Civil Procedure it was for the appellants to satisfy the learned Subordinate Judge about non-service of summons on them or that they were prevented by sufficient cause who not even came to depose to support their allegations. (iii) From the Testimony of their witness A.W. 1 Keso Poddar it was clear that the appellants had knowledge of the suit at1east in the year 1984 when he had informed them. (iv) No reliance should be placed on the testimony of A.W. 2 Abhay Kumar Singh as he incorrectly claimed himself to be applicant which was not a fact. (iii) From the Testimony of their witness A.W. 1 Keso Poddar it was clear that the appellants had knowledge of the suit at1east in the year 1984 when he had informed them. (iv) No reliance should be placed on the testimony of A.W. 2 Abhay Kumar Singh as he incorrectly claimed himself to be applicant which was not a fact. Even though A.W. 2 claimed to have kept the alleged power of attorney on behalf of the appellants it was falsified by the respondents by putting the very first question in his cross-examination as to whether his power of attorney is registered or not to which he answered that it is a registered one. The court below made correct observation in regard to the non-filing of the alleged power of attorney. In 'paragraph 9' this witness has stated that the appellants had not came to Bhagalpur to file the Misc. Case, and that his statement that he himself had gone to Bangkok and informed of the ex-parte decree is contrary to the pleadings of the appellants. (v) The total area of the lands described in Schedule-C of the earlier plaint measured 18.39 Acres and fraud having been practiced the suit in question was correctly filed and thus appeal is being contested by the plaintiffs as well as their settled. (vi) Summons Were served by the summon bellif of the Small Cause Court of Calcutta, O.P.W. 5, who had denied the allegations suggested in his cross-examination. (vii) Even the application filed by the appellants was not supported by any affidavit as required under the Civil Court Rules framed by this Hon'ble Court under the Code of Civil Procedure. (viii) The appeal is, thus, without any merit and is liable to be dismissed with cost. 12. Mr. Mazumdar, in reply submits, apart from reiterating his earlier submissions, as follows:- (i) had the respondents raised any objection in regard to the non-filing of the affidavit or the verification the appellants could have rectified in court below itself. This question cannot be argued for the first time in this Court. (ii) There was nothing wrong in the testimony of A.Ws. 1 and 2 to disbelieve them. There was a slight inaccuracy in the testimony of Keso Poddar when he mentioned the year 1984. In fact the said witness had stated of the decree passed in the suit in 1986. (ii) There was nothing wrong in the testimony of A.Ws. 1 and 2 to disbelieve them. There was a slight inaccuracy in the testimony of Keso Poddar when he mentioned the year 1984. In fact the said witness had stated of the decree passed in the suit in 1986. (iii) No reliance should be placed on the testimony of the Bellif specially when he has not taken signature of any witness in regard to his alleged service of notice On S.C. Jain. (iv) The court below bas erred in law in not taking into account the first proviso of Order IX Rule 13 of the Code of Civil procedure. My Findings :- 13. Order IX Rule 13 of the Code of Civil Procedure runs as follows:- "In any case in which a decree is passed ex-parte against a 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 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 ex-parte merely on the ground that there has been an irregularity in the service of summons, if; is satisfied that the defendant had notice of the date of bearing and had sufficient time to appear and answer the plaintiff's claim, [Explanation :- Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has with drawn the appeal, no application shall lie under this rule for setting aside that ex-parte or decree" From its bare perusal it is clear that the substantial part of the said provision is in four parts. The first of it covers such cases when an applicant satisfies the court that the summons were not duly served on him. The other substantial part of it is that the applicant has to satisfy of his non appearance due to prevention by sufficient cause when the suit was called out for its bearing. The third substantial part is that pan of the decree can be set aside if it is of such a nature as contemplated under its first proviso. The fourth substantial part is that no decree will be set aside if the applicant had notice of the date of hearing and had sufficient time to appear and answer the claim of the plaintiffs. 14. Two questions were, thus, before the court below (i) whether the summons was duly served on the appellants and (ii) whether they had knowledge of the decree? 15. First I take up the issue as to whether the Misc. Case was fit to be dismissed as not maintainable merely on the ground that the date of decree was mentioned as or 28.8.1985. My answer is a definite no. Simply because the date of decree was incorrectly mentioned the Misc. Case could not be dismissed. Thus, I overrule the finding of the learned Subordinate Judge in this regard. 16. Paragraphs 11 and 12 of the said petition runs as follows :- "11. That the petitioners have come to know of the alleged decree on 20.3.1986 from one Keso Poddar who is the Sepahi of the petitioners who is looking after the cultivation. 12. That on having came to know the petitioners became astonished to learn and thereafter the petitioners obtained information through Ugra Mohan Pandey the kapardazon 1.4.1986." I, however, do not find any real inconsistency in the aforesaid paragraphs. 17. I do not find anything serious in non-examination of the learned counsel of the appellants Sriram Tiwary. 18. In their petition the appellants had stated their address as follows:- "Resident of 155, Radha Bazar Street, Calcutta, at present residing in Bangkok (Thailand)" It is true, however as observed by the learned Subordinate Judge that the vakalatnarra (Ext. A) States the address of the appellants in Calcutta. Ext.-A does not show that the appellants were residing then in Bangkok as alleged by them. A) States the address of the appellants in Calcutta. Ext.-A does not show that the appellants were residing then in Bangkok as alleged by them. I also find from the records that no document has been filed to show that at the relevant time when the summons were issued and served on the appellants, Were in Bangkok. 19. The petition of the appellants was signed by their advocate and not by any of the appellants. 20. The allegations made: in the petition were not supported by any affidavit or any verification by the appellants. 21. It has also not been stated anywhere• in the said petition that A.W. 2 happens to be their power of attorney bolder. 22. As already stated the appellants have not cared to take the responsibility of the correctness of the allegations made in their petition by filing their own affidavit or verification. 23. The alleged power of attorney has also not been filed. A.W. 2 has not stated in his examination-in-chief that power of attorney was executed by the appellants in his favour to look after or to do anything in regard to Title Suit No. 271 of 183 in question. 24. A.W. 2 surprisingly in his evidence stated that he is the applicant. 25. A.W. 1 Keso Poddar claimed himself to be the watchman (Sepahi) of the appellants who in paragraph-1 of his examination in-chief stated to the effect that the appellants had not come to Calcutta Whereas paragraph 2 of his examination in-chief stated that when they came to Abhay Babu (A.W. 2) in 1984 they were apprised by him in phalgun at their building situate at Bhagalpur. In paragraph 4 of his cross examination he could not answer as to which of the two appellants reside in Bangkok. Mr. Mazumdar tried to explain the statement made in paragraph 2 of his examination-in chief that the word 1984 mentioned therein is incorrect and that if should have been 1986. I do not find sufficient reason to accept his explanation now in as much as had this been a fact an attempt should have been made by the appellants in the trial court itself to get it rectified. The suit in question was decreed in 1985 and not in 1986. 26. I do not find sufficient reason to accept his explanation now in as much as had this been a fact an attempt should have been made by the appellants in the trial court itself to get it rectified. The suit in question was decreed in 1985 and not in 1986. 26. In paragraph 6 of his Examination-in Chief A.W. 2 had proceeded to state that his claim is correct whereas the claim was made by the appellants and not by him when cross-examined A.W. 2 in paragraph 7, failed to state even the address of the appellants as stated in Title Suit. A.W. 2 in paragraph 7 of his cross examination clearly stated that both brothers (appellants herein) had knowledge of the opening of the Title Suit No. 21 of 1966. He duping his further cross-examination stated that he cannot produce any documentary evidence to show from which it would appear that both brothers were in Bangkok from date of the institution of Title Suit No. 21 of 1986 till to date. To Crown all A.W. 2 in paragraph 9 of his cross-examination had gone to the extent of stating that he himself had gone to Bankok to inform about the ex-parte decree which fact was not stated in the petition under Order IX Rule 13 of the Code of Civil Procedure. 27. I have perused the other evidence adduced by the appellants but I am not inclined to accept their version specially when none of the appellants have not come to support the allegations made on their behalf in the petition under Order IX Rule 13 of the Code of Civil Procedure in the absence of any cogent explanation for their non-examination 28. Taking into account the entire facts and circumstance I do not find any merit in the submissions of Mr. Mazumdar except those dealt with earlier. 29. For the reasons aforementioned, I do not find any merit in this appeal. It is, accordingly, dismissed but in the peculiar facts and circumstances without cost. Appeal dismissed.