ORDER Arun Mishra, J. These appeals have been preferred by the Appellants aggrieved by dismissal of application was filed under Order 41, Rule 21 read with Section 151 CPC to restore, rehear and decide the appeal afresh. The case has a checkered history. Plaintiffs/Respondents filed a suit praying for relief of declaring the order passed by the erstwhile Bhopal Government, to be null and void and title of Respondents No. 1 to 13 to be declared as illegal, they be treated as trespasser and it be held that that the Plaintiffs are the real Bhumiswami of the disputed land. Prayer for possession was also made along with mesne profit. Decree for mesne profit was prayed jointly and severally against the Defendants. Plaintiffs averred that father of Plaintiffs are sons of Kanhaiyalal. Kanhaiyalal was grandfather of the Plaintiffs. The land in dispute was inherited by Kanhaiyalal from his father; Ganpat Singh. Kanhaiyalal inherited the property; shown in schedule "A". In the year 1954-55 the Bhopal State passed an order under the Kans Eradication Act, 1954. Legal heirs/successors of Kanhaiyalal were not consulted before tractorisation of the land under the suit and charges of Rs. 8,732/- were realized. Kanhaiyalal nor his son filed any civil suit before the Civil Court to question the illegal and arbitrary action of the Bhopal State owing to their negligence, lethargy and ignorance of law carelessness. The Apex Court in another case State of Bhopal and Others Vs. Champalal and Others, decided against the State of Madhya Pradesh and held that the action taken under the Act was illegal. Defendants No. 1 to 13 are trespasser on the land, they are illegally reaping the benefit of mesne profit. There was negligence on the part of Defendants No. 14, 15, 16 and 17 in taking timely action, they are arrayed as proper parties in the suit. Written statement was filed by the Defendants No. 1, 2, 3, 5, 8, 9, 10, 11 and 13. The fact that the Plaintiffs were minor was denied. It was submitted that they had attained the majority, but, it was also denied that the Land was inherited by Shri Kanhaiyalal from his father; Ganpat Singh. It was self acquired property of Kanhaiyalal. The father of Plaintiff had no lawful right, title or interest in the disputed land, as such the steps were not taken for eviction. It was submitted that they had attained the majority, but, it was also denied that the Land was inherited by Shri Kanhaiyalal from his father; Ganpat Singh. It was self acquired property of Kanhaiyalal. The father of Plaintiff had no lawful right, title or interest in the disputed land, as such the steps were not taken for eviction. The auction of the Land made in favour of Respondents No. 1 to 4 was not null and void. The decision of the Apex Court does not effect or annul the auction sale of the land in favour of the Defendants. The auction was confirmed. Sale certificate was issued in favour of the Defendants No. 1 to 4. Possession was also delivered. Subsequent declaration by the Court that Section 4 of the Kans Eradication Act was ultra vires, did not affect the auction which had already been held and has attained finality. They are rightful owner of the land in possession. The suit was barred by limitation. Minority, if any, does not extend the period of limitation in favour of the Plaintiff. In the year 1956-57 Defendants No. 1 to 4 transferred the suit land to Defendant No. 5, on 12-11-1963 they executing a sale-deed with respect to survey No. 351-352, 424, 250 in area 37.76 acres. In the year 1956-57 Defendants No. 8 and 10 also purchased the land from Defendants No. 1 to 4, mutation was also made, total area transferred was 24.06 acres out of Survey Nos. 349, 350 and 352. In the year 1956-57, Defendant No. 9 and one deceased; Brijmohan purchased 16 acres of land out of Survey No. 351. Their names were also mutated. Sale-deeds were executed on 12-11-1963. Defendant No. 14 sold these land to Manoharsingh son of Bhagwansingh by a registered sale-deed. Manoharsingh was placed in possession of the land. Rest of the land continues to remain in possession of answering Respondents. Plaintiffs No. 8 to 11 being granddaughters of Kanhaiyalal holds no interest in the disputed land, no right accrued in their favour. To set aside auction the limitation was one year with effect from the date of confirmation of sale, as per Article 12 of the Limitation Act, 1908 which provision is pari materia of Article 99 of the Indian Limitation Act of 1963. A separate written statement was also filed by Defendants No. 15 to 18. To set aside auction the limitation was one year with effect from the date of confirmation of sale, as per Article 12 of the Limitation Act, 1908 which provision is pari materia of Article 99 of the Indian Limitation Act of 1963. A separate written statement was also filed by Defendants No. 15 to 18. For Defendants No. 7 and 8 as they were minor, a guardian ad litem was appointed. Initially the suit was dismissed as per the judgment and decree dated 4-3-1983. An appeal was preferred. In first appeal, case was remanded to the trial Court as per order dated 22-4-1985. It was specifically ordered by the first Appellate Court to allow opportunity to amend written statement after plaint was amended in spite of that notices were not issued to them. However, the trial Court again dismissed the suit that. A first appeal was preferred, same was decided on 9-5-1992. Case was again remanded to the trial Court for impleading the State of Madhya Pradesh, and in view of certain additional documents which were filed by the Plaintiffs. After remand of the matter the trial Court again dismissed the suit. However, at no point of time even after remand of the case, 3rd time notices were not issued to unrepresented Defendants. Again a First Appeal No. 2A/95 was filed and in the appeal an order passed by the Appellate Court to serve the Defendants, order was not complied with. However, the Plaintiffs/Appellants prayed for dispensing with the service on unrepresented Defendants on 21-2-1995 it was submitted that the Defendants No. 1 to 6, 9 to 20 have remained ex parte before the trial Court and Plaintiffs Appellants have not prayed for any relief as against them, as such their service be dispensed with. Consequently, on the false statement that no prayer was made against aforesaid Defendants, No. 1 to 6, 9 to 20, service of summons of appeal was dispensed with, only GAL represented Defendants No. 7 and 8. When unrepresented Defendants came to know of an ex parte decision of the appeal as per judgment dated 6-9-1995 decreeing the suit filed by the Plaintiffs without service of notice on them two applications were filed under Order 41, Rule 21, Civil Procedure Code. When unrepresented Defendants came to know of an ex parte decision of the appeal as per judgment dated 6-9-1995 decreeing the suit filed by the Plaintiffs without service of notice on them two applications were filed under Order 41, Rule 21, Civil Procedure Code. One of the application was preferred by Radheshyam, Savitri Bai, Radha Bai, Laxmi Bai and Rukmani Bai to set aside the judgment and decree of Appellate Court directing recovery of possession from them and annulling the auction made in their favour, Jagdish, son of Deviprasad had died at the time when appeal was filed before the first Appellate Court. His LRs were not brought on record. Factum of his death was also not disclosed, he was arrayed as Respondent No. 14 in the appeal and legal representative of Jagdish were not impleaded deliberately; Savitri Bai is daughter-in-law of Jagdish. No notice was served on them. Thus, by playing fraud an ex parte decree has been obtained against her interest. It was also submitted that Rupa Bai another Respondent had died on 18-8-1993 before filing appeal, her legal representative; Radha Bai, Laxmi Bai and Rukmani Bai were also not impleaded as parties, thus, they had no intimation of appeal, appeal was filed against dead person and decided against a dead person; Rupa Bai, she was impleaded as Respondent No. 5. Thus, decree was passed against a dead person without impleading their LRs. It was null and void, It was also wrongly informed to the Court that no relief was claimed against unrepresented Defendants. In fact relief was claimed that auction in favour of Defendants No. 1 to 4 be set aside, this application was filed on 2-4-1996 and renumbered subsequently as MJC No. 16/02. Yet another application was filed by Imratlal Appellant under Order 41, Rule 21, CPC read with Section 151, CPC stating that on 21-2-1995 the Court was wrongly informed by the Appellants that no relief was claimed against Respondents No. 1 to 6, 9 to 20. On this wrong statement, service on them was dispensed with. Once it was stated that Appellants not were claiming any relief against them, it was not open to the Plaintiffs to obtain a decree against the interest of the aforesaid Defendants without serving of notice on them. Court was defrauded. On this wrong statement, service on them was dispensed with. Once it was stated that Appellants not were claiming any relief against them, it was not open to the Plaintiffs to obtain a decree against the interest of the aforesaid Defendants without serving of notice on them. Court was defrauded. After service was dispensed with, case was got transferred to another Court in order to obtain an ex parte decree LRs of Radheshyam were also not brought on record, as such suit has abated and there was possibility of conflicting decree being passed due to abatement of suit vis-a-vis to Radheshyam. The Appellate Court as per remand order dated 22-4-1985 had ordered that unrepresented Defendants to be served, but, still no notices were issued, service was effected at any point of time after remand of the case before the trial Court or before the Appellate Court. Thus, direction issued in the remand order dated 22-4-1985 has been violated. Suit was also barred by limitation. This application was preferred by Imratlal on 1-2-1997 which was subsequently renumbered and registered as MJC No. 14/02. The Appellate Court as per more or less similar orders dated 11-7-1993 decided both the MJCs, it has dismissed the applications filed under Order 41, Rule 21 of the Civil Procedure Code. Aggrieved by impugned orders, these appeals have been preferred. Shri Ashish Shroti, Learned Counsel appearing on behalf of the Appellants has submitted that on account of impleadment of dead persons; Rupa Bai and Jagdish no order could have been passed by the Appellate Court on merits of the case without impleadment of LRs of the deceased Respondents; both Jagdish and Rupa Bai, died before trial Court, the proper course for the Appellate Court was to consider effect of death of Rupabai and Jagdish before trial Court and effect of not bringing the LRs of deceased; Jagdish and Rupa Bai. He has further submitted that the remand order dated 22-4-1985 has been violated. He has further submitted that the remand order dated 22-4-1985 has been violated. There was direction issued in the remand order to give opportunity to unrepresented Defendants to amend WS and to adduce evidence at no point of time upto the Appellate Court, even after the second remand, no notices were issued and ultimately an ex parte decree was-obtained on false statement made to the Appellate Court that no relief was claimed against Defendants No. 1 to 6, 9 to 20 whereas the decree was prayed for possession against Defendants No. 1 to 13 and to hold that they were not having any right, title or interest over the suit land. Thus, services were got dispensed with by playing fraud and by making a wrong statement, later on it was not open to the Appellants obtain a decree once they declared that they do not claim any decree and thus abandoned the case against three Defendants, as such Respondents were estopped to obtain a decree, even otherwise decree passed in ex parte deserves to be set aside in the facts and circumstances of the case. Written statement was filed by most of these Defendants. They have furnished their address, discretion under Order 41, Rule 21(4) CPC has not been properly exercised by the Appellate Court and an order dispensing with service was passed on mis-statement on fact. Thus, the impugned order be set aside. Appeal be directed to be heard afresh after hearing the Appellants. Shri R.N. Yadav, Learned Counsel appearing on behalf of the Plaintiffs/Respondents has supported the order. He has submitted that it is discretionary to the Appellate Court to dispense with the service as after filing the written statement, Defendants were proceeded ex parte before the trial Court. They have not adduced any evidence after filing of written statement, as such in view of the State Amendment made under Order 41, Rule 14(3) Civil Procedure Code, it is open to the Appellate Court in its discretion to dispense with the notice to any of the Respondents against them the trial Court has proceeded ex parte. Once discretion has been exercised by the Appellate Court to dispense with service it is not open to make an interference as held by the Full Bench of this Court in Smt. Jamuna Bai and Ors. v. Ckhote Singh and others, 2004(2) MPLJ (FB) 376 = 2004(2) MPHT 325 . Once discretion has been exercised by the Appellate Court to dispense with service it is not open to make an interference as held by the Full Bench of this Court in Smt. Jamuna Bai and Ors. v. Ckhote Singh and others, 2004(2) MPLJ (FB) 376 = 2004(2) MPHT 325 . He has further submitted that two of the Defendants were represented by GAL, as such there was substantial representation, hence, no prejudice was caused due to dispensing with the service of notice. He has also submitted that as provision of Section 4(1) and (4) of the Bhopal Reclamation and Development of Lands (Eradication of Kans) Act, 1954 was declared to be ultra vires being violative of Article 19(1)(f), thus, the auction in favour of Defendants No. 1 to 4 was illegal and void. No case for interference is made out on merit in view of the decision of the Full Bench of this Court in State of Bhopal and Others Vs. Champalal and Others, . First question for consideration is whether the Appellate Court was right in dispensing with service of notice on Defendants/Respondents No. 1 to 6, 9 to 20: no doubt about it that it is discretionary with the Appellate Court to dispense with the notice to any Respondent against whom the suit was heard ex parte as per the State Amendment made in Sub-rule (3) of Rule 14 of Order 41, Civil Procedure Code. However, at the same time, the discretion to dispense with the service cannot be exercised arbitrarily or on wrong statement of fact. What was submitted before the Appellate Court on 21-2-1995 passes comprehension that no decree was claimed against Defendants/Respondents No. 1 to 6 and 9 to 20. It was palpably false statement made, The Appellate Court also failed to look into the relief claimed in the plaint, in which it was prayed that the title of the Defendants No. 1 to 13 be declared as illegal and they be treated as trespasser and possession be ordered to be restored from the Plaintiffs to them. It is also clear that the property exchanged hands by virtue of registered sale-deeds after it was auctioned by the erstwhile Government of Bhopal State to Defendants No. 1 to 4. It is also clear that the property exchanged hands by virtue of registered sale-deeds after it was auctioned by the erstwhile Government of Bhopal State to Defendants No. 1 to 4. Thus, it is clear that the Court was defrauded by making a false statement that no relief was claimed against the Defendants No. 1 to 6 and 9 to 20. Court has also passed the order of dispensing with the service in reckless manner. The discretion contemplated under Order 41, Rule 14(5) cannot be exercised arbitrarily. Thus, the Appellate Court committed an illegality while exercising the discretion in favour of Plaintiffs/Appellants on the basis of aforesaid factually wrong statement. Shri R.N. Yadav, Learned Counsel appearing on behalf of the Plaintiffs/Respondents has relied upon the the decision of the Full Bench in Smt. Jamuna Bai and Others Vs. Chhote Singh and Others, wherein this Court has laid down that once the certain Respondents have failed to appear before the trial Court, they cannot claim right of hearing at the first instance. No benefit can be claimed by such a party against the exercise of discretion by the Court in dispensing with the notice, when the notices were dispensed with, appeal cannot be dismissed. The effect of dispensing with service is that the Respondent remains a party in the appeal but service of notice is dispensed with. Dispensing with notice cannot be termed as deleting the name of unserved Respondents, on the contrary they continue to remain party in the appeal. The Full Bench of this Court has held that the three decisions of this Court in Smt. Sushila and Another Vs. Rajveer Singh and Others, , Raghavendra Naik and Another Vs. Mahavir and Others, and Kalabai Choubey and Others Vs. Rajabahadur Yadav and Another, do not lay down the correct law. The Full Bench has further held that there is no inconsistency in the M.P. Amendment and Sub-rule (4) of Rule 14, Order 41 and the service of notice can be dispensed with upon the parties, who were proceeded ex parte before the Court of first instance. The Full Bench of this Court has laid down thus: 15. The Full Bench has further held that there is no inconsistency in the M.P. Amendment and Sub-rule (4) of Rule 14, Order 41 and the service of notice can be dispensed with upon the parties, who were proceeded ex parte before the Court of first instance. The Full Bench of this Court has laid down thus: 15. Thus, it is clear that there is no inconsistency in the M.P. Amendment and Sub-rule (4) of Rule 14 of Order XLI and the notice can be dispensed with upon the parties, who was proceeded ex parte before the Court of first instance. Language of Sub-rule (4) of Rule 14 of Order XLI is clear where it provides that it shall not be necessary to serve notice of any "proceeding incidental to an appeal.". So the Legislature has made it mandatory that it is not necessary to serve notice and when Legislature has provided that it is not necessary to serve notice upon the party, who has not appeared in the Court of first instance or failed to file address for service of notice, the appeal cannot be dismissed after notice upon the Respondents are dispensed with by the Court. We, therefore, hold that Division Bench judgments delivered in the cases of Sushila (supra), Raghvendra Naik (supra) and Kalabai Choubey (supra) do not lay down the correct law. We answer the question that the appeal shall not fail on account of dispensing with notice upon the Respondents, who were ex parte before the Court of first instance and they have not submitted the address of service for notice. Since Respondents have chosen not to appear before the Court of first instance, they cannot not claim right to be heard at the appellate stage. No benefit can be claimed by the party against the exercise of discretion of the Court in dispensing with notice. When notices have been dispensed with appeal cannot be dismissed and Appellate Court has power to modify or enhance the quantum of compensation. Reference is answered accordingly. File be placed before the Bench for decision of appeal on merits. No benefit can be claimed by the party against the exercise of discretion of the Court in dispensing with notice. When notices have been dispensed with appeal cannot be dismissed and Appellate Court has power to modify or enhance the quantum of compensation. Reference is answered accordingly. File be placed before the Bench for decision of appeal on merits. There is no dispute as to proposition laid down by the Full Bench, no doubt about it that merely by dispensing with the service of notice, the appeal does not become not maintainable, when the Respondents have not chosen to appear before the Court of first instance and cannot claim right to be heard before the Appellate Court, but, at the same time discretion to dispense with service has to be used by the Court on sound basis and correct factual matrix not procured by false statement. In the instant case, the facts are writ large, totally incorrect statement was made. In Anjali Roy Vs. State of West Bengal and Others, , it has been observed that it is true that Order 41, Rule 14(3), Civil Procedure Code, empowers the Court to dispense with the service of notice of the appeal on Respondents who had not appeared in the Court below, but the power is only discretionary and when the relief asked for is personal order on such Respondents, directing them to do or forbear from doing a certain thing, the power ought never to be exercised, nor should its exercise be asked for. Even when the power has been exercised, it is at least a question whether, although the constitution of the appeal may not have become defective, it was considered proper that service should have been effected in view of the relief which was claimed against the Respondents. In Moidin Bacha Rowther and Anr. v. I.S. Chindambaram Pillai, AIR (32) 1945 Mad 86 a Division Bench has considered the provision of Order 41 Rule 14 CPC it held that when an appeal was filed and the only Respondents to that appeal were persons who had allowed the proceedings in the trial Court to go on ex parte it was undesirable to apply the proviso to Rule 14, Order 41, Civil Procedure Code, without an attempt to serve at least one of those Respondents, it was not proper to decide the appeal. Thus, it has to be considered in the facts and circumstances of the each case whether the Court has properly exercised discretion while dispensing with the service under Order 41, Rule 14(3) Civil Procedure Code. Exercise of discretion is open to judicial review it is not unfettered neither arbitrary nor this provision is to enable any litigant to make a wrong statement in the Court to obtain a relief. It is also to be noted that the Appellate Court had remanded the case first time as per order dated 22-4-1985. There was a clear direction made in the aforesaid remand order passed in Civil Appeal No. 38A/95 by the District Judge, Sehore. While amendment application filed by the Plaintiffs was allowed that the trial Court shall obtain the amended written statement on the amended pleadings made by the Plaintiffs. Issues were also ordered to be struck. Evidence as may be adduced by both parties was also to be recorded. In spite of aforesaid direction no notice was issued to unrepresented Defendants, after the plaint was amended. They had no notice of amended plaints. It was necessary to issue the notice to unrepresented Defendants after the plaint was amended in order to allow them amendment of written statement which was not done. In view of the remand order dated 22-4-1985 as date was not fixed Appellate Court did not direct that no notice need be issued, it was necessary to issue notices to all the Defendants. The Appellate Court has erred in holding that as service of notice was dispensed with by it application were not maintainable. Order 41, Rule 21 of the CPC is quoted below: R. 21. Re-hearing on application of Respondent against whom ex parte decree made.- Where an appeal is heard ex parte ; and judgment is pronounced against the Respondent, he may apply to the Appellate Court to re-hear the appeal, and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. In case "notice was not duly served" party can apply for rehearing on similar principle the question whether dispensation of notice was legal and proper or not can also be raised, cause can also be shown that the party applying for rehearing was prevented by any sufficient cause from appearing when appeal was called for hearing. It is clear that if a party had no notice of appeal to appear or had some other sufficient cause not to appear can apply for rehearing of appeal that has been decided ex parte. In Subhanrao v. Patankar v. Masu Daju Pote, (1983) 1 SCC 400 when party was duly served but counsel failed to appear, in the facts of case rehearing was afforded by applying the principle under Order 41, Rule 21 of the Civil Procedure Code. In Martin Burn Ltd. Vs. R.N. Banerjee, considering principle of Order 41, Rule 21 Civil Procedure Code, Court can rehear appeal if considered necessary for ends of justice or to prevent abuse of the process of Court. In Mirza Wajahad Baig and Others Vs. Sharanappa and Others, when one of Respondent was not served order of High Court was set aside. In the instant case, service was illegally dispensed with on wrong statement and decree procured against those very Defendants after stating that no relief was claimed against them. Thus, applicants ought to have been allowed by Appellate Court for rehearing of appeal. There is yet another reason due to which the Appellate Court should have recalled the judgment. It is clear from appellate judgment that Rupa Bai was arrayed as Respondent No. 5 and Jagdish was arrayed as Respondent No. 14, both were dead. They had died before filing of the appeal. Appeal could not have been decided for or against a dead person, effect of death of Rupa Bai and Jagdish was required to be considered by the Appellate Court, as this fact was not pointed to the Appellate Court by the Plaintiffs/Appellants at the time of deciding the appeal. It was necessary to the Appellate Court to have considered aforesaid aspect while deciding the appeal on merit, an appeal could not have been decided without bringing the LRs of deceased Rupa Bai and Jagdish. Lis passes into state of suspense on death of litigant. It was necessary to the Appellate Court to have considered aforesaid aspect while deciding the appeal on merit, an appeal could not have been decided without bringing the LRs of deceased Rupa Bai and Jagdish. Lis passes into state of suspense on death of litigant. The Court was required to decide the said question before delving upon with the merit of appeal and its effect on judgment and decree passed by trial Court. Thus judgment and decree dated 6-9-1995 passed by the Appellate Court is liable to be set aside for this reason alone. Resultantly, I find that the impugned orders passed in MJC No. 16/02 and MJC No. 14/02 cannot be allowed to be sustained. Both the orders are hereby set aside, the MJCs are allowed. The judgment and decree dated 6-9-1995 passed by the Appellate Court is hereby set aside. The Appellate Court to hear the appeal afresh, to issue notice to the Respondents and ensure that the Respondents against whom relief has been claimed are served. Appeals are allowed. Parties to bear their own costs. Final Result : Allowed