ORDER P.K. Musahary, J. 1. This revision petition has been filed by the petitioner/plaintiff against the impugned judgment and Order dated 26-10-2006 passed by the learned District Judge, Shillong, in FAO 1 (H) 2006, remanding back the Misc. Case No. 21(H)/01 arising out of T.S. No. 18(H) 1999 to the Court of Munsiff with a direction to hear the parties and dispose of the application under Order 9, Rule 13 on merit. 2. Before considering the present petition it is necessary to advert to the facts of the case projected by the plaintiff/petitioner and the circumstances leading to passing of ex parte decree and execution of the decree passed by the learned Munsiff Court. 3. The plaintiff/petitioner filed the title suit 18(H)/1999 in the Court of Munsiff on 17-12-1999 for declaration, recovery and handing over of possession of the suit premises. The plaintiff/petitioner is the owner of the suit premises and the respondent/defendant was a tenant. The tenancy agreement executed between them was valid up to 30-9-1999 but on the termination of the tenancy period the respondent did not hand over the vacant possession of the suit premises and as such the plaintiff as land lord had to file the aforesaid title suit. The defendant/respondent did not file a written statement in spite of being given ample opportunities to do so and ultimately by an order dated 9-8-2002, the Munsiff Court fixed the suit for ex parte hearing on 1-9-2000 and accordingly the suit was heard ex parte and also fixed for judgment on 29-9-2000. 4. Suddenly the defendant/respondent after a period of 10 (months), got up from deep slumber and filed an application No. 499/2000 dated 26-9-2000 (three days be fore the date fixed for judgment) under Order 9 Rule 13 read with Section 151, CPC for restoration of suit by vacating the order for ex parte hearing and ex parte judgment and allow him to file written statement. The records show that the defendant assigned the reasons for not been able to appear or file written statement as under: 1. That the defendant has appointed his counsel for defending his interest and appear before this Hon'ble Court. 2. That the defendant was out of station for a period of 3 (three) months due to his residential and personal difficulty with a view that his interest is totally saved by his counsel. 3. That the defendant has appointed his counsel for defending his interest and appear before this Hon'ble Court. 2. That the defendant was out of station for a period of 3 (three) months due to his residential and personal difficulty with a view that his interest is totally saved by his counsel. 3. That on arrival, the humble defendant came to know that the said case as stated herein above has already been heard ex parte against the defendant as stated in para 1 above. 4. That the defendant shall suffer irreparable loss unless the suit is restored and filed as the defendant is not personally responsible for any laches as negligence and, therefore, the defendant should not be allowed to suffer for the default of his lawyers. 5. The defendant remained absent on four out of six days fixed for hearing of his aforesaid application under Order 9, Rule 13 and it was dismissed by an order dated 29-3-2001 as he was found absent and unrepresented and date was fixed on 30-4-2001 for judgment in the aforesaid title suit. The judgment was delivered accordingly by the learned Munsiff on 9-5-2001. In the meantime the ex parte judgment and decree dated 9-5-2001 was executed in Title Execution Case No. 1(H) 2001 and the Bailiff submitted a report on 19-9-2001 to the effect that the possession of the suit premises has been given to the decree holder at 4 p.m. as per Order of the Court dated 14-9-2001. 6. The defendant preferred no appeal against the Munsiffs Order dated 29-3-2001 dismissing his petition under Order 9, Rule 13 although there was no legal bar for preferring such appeal and such appeal having not been preferred the aforesaid Order dated 29-3-2001 attained its finality. The defendant also did not prefer any appeal against the ex parte judgment and decree dated 9-5-2001 and as such it also attained its finality. 7. Therefore, the defendant, for the second time filed another petition on 5-11-2001 which was registered as Misc. Case No. 21(H)/2001 under Order 9, Rule 13, CPC. This time he added a new ground in para. 23 of his petition which runs as under: 23. That, however, the lawyer so appointed by the petitioner/defendant/JD was found slow slack and negligent in pursuing the case as a result of which as ex parte judgment and decree dated 9-5-2001 was passed by the Hon'ble Court. 8. This time he added a new ground in para. 23 of his petition which runs as under: 23. That, however, the lawyer so appointed by the petitioner/defendant/JD was found slow slack and negligent in pursuing the case as a result of which as ex parte judgment and decree dated 9-5-2001 was passed by the Hon'ble Court. 8. In the said second petition the defendant further stated thus: 18. That when the petitioner/defendant/JD came back to Shillong on 20th day of Ju0ly, 2000 after medical treatment heard from his friend that the opposite party/plaintiff/decree holder had instituted a suit against the petitioner/defendant/JD in the Court. 9. It is pertinent to note that an application for setting aside an ex parte decree may be made under Order 9, Rule 13, CPC if one can satisfy the Court that-- (1) The summons was not duly served, or (2) He was prevented by any sufficient cause from appearing when the suit was called on for hearing. From his own statement in his first application as stated above, it is clear that he engaged a counsel and as such the defendant cannot take first plea of summons not being served on him. The defendant, in support of his plea under second fold, stated that he was out of station for a period of three months due to his residential and personal difficulty. The defendant has not mentioned what was his residential and personal difficulty and since when he had been facing such difficulty. The grounds taken by the defendant for setting aside ex parte decree was not in fact satisfactory for being considered under Order 9, Rule 13, CPC and such an application should have been dismissed/rejected summarily by the Courts below but without doing so, defendant was given sufficient opportunities to make out a case under Order 9, Rule 13, CPC. 10. It is seen from records that on 28-6-2000 a hazira was filed for the defendant but no written statement was filed. No application was made by the defendant seeking time for filling an additional statement nor did he make any complaint before the Court that no summons was served on him. The defendant was given last chance to file written statement by 18-7-2000, but he failed to do so and the Court ordered to proceed ex parte against the defendant fixing 9-8-2000 for ex parte hearing and evidence. The defendant was given last chance to file written statement by 18-7-2000, but he failed to do so and the Court ordered to proceed ex parte against the defendant fixing 9-8-2000 for ex parte hearing and evidence. The ex parte hearing was adjourned till 14-8-2000 and again till 1-9-2000. The ex parte hearing and evidence took place on 1-9-2000 and the ex parte judgment and decree was delivered on 9-5-2001 only. 11. It may be noted here that although the defendant made certain allegations in his first application against the engaged counsel he did not furnish any document/proof, at least by annexing a copy of any letter sent to the advocate concerned questioning his slackness or negligence in pursuing the case on his behalf. It is also pertinent to note here that the defendant took quite different grounds in his above two applications under Order 9, Rule 13, CPC. As per his own statements in the second application, the defendant returned to Shillong on 22-7-2000 and till the ex parte judgment and decree was delivered on 9-5-2001, the 10. defendant had as much sufficient time as 10 (ten) months, to enquire himself or through his engaged counsel to know about the possession of the title suit. The defendant was found negligent in prosecuting his second application and it was dismissed on 9-7-2002, although it was restored on 18-7-2002 inasmuch as the applicant did not object to its restoration. The second application was also liable to be dismissed summarily in view of the fact that the defendant furnished varied grounds which are not as per the requirements under Order 9, Rule13, CPC. However, learned Munsiff after hearing both the parties rejected the said Misc. Case 21 (H)/2001 vide Order dated 20-12-2002. By another Order dated 21-2-2003, the learned Munsiff also directed to break open the lock, if any, on the suit premises. 12. The defendant thereafter filed an application before the learned Munsiff for stay of the aforesaid Order dated 20-12-2002 and 21 -2-2003 so as to enable him to prefer an appeal and obtain stay order from the appellate Court. The said prayer was allowed by the learned Munsiff and the defendant accordingly preferred revision petition directly before this Court since the presiding Judge of the lower appellate Court was on leave. The said prayer was allowed by the learned Munsiff and the defendant accordingly preferred revision petition directly before this Court since the presiding Judge of the lower appellate Court was on leave. The said Revision Application No. CR (P) 5 (SH)/2003 was ultimately disposed of by this Court vide Order dated 17-6-2003 by remanding the matter to lower appellate Court inasmuch as the revision was filed for a limited purpose and it had spent its force and the lower appellate Court was available by that time and directed the parties to agitate the matter in the lower appellate Court. On remand the lower appellate Court heard the appeal which was registered as FA 01(H) 2003 and disposed of the same vide Order dated 2-11-2005 by setting aside the order dated 20-12-2002 and remanded the matter to the trial Court for fresh hearing of Misc. Case No. 21(H) 2001, i.e. the application under Order 9, Rule 13, CPC filed by the defendant. 13. The learned Munsiff, on remand, heard both the parties and rejected the prayer of the defendant dismissing the Misc. Case No. 21(H)/2001. The defendant, being aggrieved, preferred an appeal before the learned District Judge, Shillong, which was registered as FA 01(H)/06. The learned District Judge, as appellate Court, heard the parties and disposed of the same by an order dated 26-10-2006 and remanded the case again to the learned Munsiff for fresh hearing. It is the second remand order of the learned lower appellate Court dated 26-10-2006 for fresh hearing and for disposal of the application under Order 9, Rule 13, CPC on merit, which is now under challenge in his instant revision petition. 14. Mr. Khan, learned Counsel for the plaintiff/petitioner, submitted that the decree having been executed in accordance with law as per Bailiffs report dated 19-9-2001 and the possession of the suit premises having been handed over to the plaintiff/petitioner in presence of the Nazir, the decree holder, and the SI of Police, the statutory remedy under Order 9, Rule 13 for setting aside the ex parte judgment and decree is no longer available to the defendant/respondent and more so when the defendant/respondent has not challenged the Bailiffs said report on execution of decree and handing over the possession of the suit premises to the plaintiff/petitioner. Mr. Mr. Khan also submitted that the first petition, registered as No. 499/2000 under Order 9, Rule 13 filed by the defendant respondent, before the decree was executed, having been dismissed by the learned Munsiff vide order dated 29-3-2001 and no appeal having been preferred against the said order dated 29-3-2001, the defendant/respondent is estopped from raising the same issue by way of filing a second petition under Order 9, Rule 13, CPC for setting aside the ex parte judgment and decree dated 5-10-2001 and the purported exercise of inherent power by the lower appellate Court under Section 151 CPC not tenable in law and the impugned Judgment and Order dated 26-10-2006 setting aside the order of the learned Munsiff dated 24-4-2006 and remanding back the case for disposal of the application under Order 9, Rule 13, CPC on merit is unauthorized and illegal. In support of his above submission the learned Counsel for the plaintiff/petitioner has cited the following cases: 1. (1983) GHC 107. 2. AIR 2007 (NOC) 1675 Sakal Dew Prasad Sahani v.Narakanta Saikia. 3. AIR 2005 SC 626 Bhanu Kumar Jain v. Archana Kumar. 4. AIR 2002 SC 1201 . 15. Per contra Mr. F. Qureshi, learned Counsel for the defendant/respondent submitted that the defendant/respondent was not served with any summons in the title suit and he was prevented from appearing in the case as he was under medical treatment outside Shillong and in spite of sufficient causes shown the learned Munsiff dismissed his application under Order 9, Rule 13 completely on mis-appreciation of facts and law. It is also submitted that the decree in question was not executed and the possession of the suit premises was not handed over to the plaintiff/petitioner in accordance with law. The learned Munsiff failed to appreciate the fact that the plaintiff/petitioner himself in his application dated 5-2-2003 requested the learned Munsiff to pass necessary Order directing the police to assist and give full protection for breaking open the lock of the suit godown/premises; which itself is a sufficient proof of the fact that the decree was, in fact, not executed and the suit premises was not handed over to the decree-holder. The decree, as submitted by Mr. Qureshi, having not been executed, the petition under Order 9, Rule 13 is maintainable and the learned Munsiff is bound to hear and dispose of the same on merit in accordance with law. 16. The decree, as submitted by Mr. Qureshi, having not been executed, the petition under Order 9, Rule 13 is maintainable and the learned Munsiff is bound to hear and dispose of the same on merit in accordance with law. 16. In reply to submission made by Mr. Qureshi for the plaintiff/petitioner that the defendant/respondent, in order to circumvent ex parte judgment and decree dated 9-5-2001 and the Bailiffs report on execution of decree, lodged FIR on 11-7-2002 against the plaintiff/petitioner and with the help of police broke open the lock put by the Bailiff at the time of execution of the decree and handing over possession of the suit premises to the plaintiff and, therefore, the defendant locked the said premises by force, for which the plaintiff/petitioner had to make an application before the learned Munsiff for breaking upon the lock illegally put by the defendant on the suit godown/premises. Simultaneously, the defendant also filed a case under Section 145, Cr.P.C. against the plaintiff. Mr. Khan submitted that the defendant has not approached the Court of law with clean hand and has resorted to illegal actions to nullify the ex parte decree and the execution thereof. 17. Mr. Khan, learned Counsel heavily relied upon the case of Banu Kumar Jain (supra) which does not involve similar fact and the question of law. In that case, the defendant entered appearance and participated in the proceeding but failed to appear on certain date fixed for cross-examination of the plaintiff and the right of cross-examination was forfeited. The case was found fixed for final argument on a date but owing to strike of the advocates, it was adjourned to another date. On the adjourned date the trial Court fixed a date for delivery of judgment. Before the date of delivery of judgment the defendant filed an application under Order 9, Rule 7, CPC for setting aside the order passing the case for ex parte hearing. The said application was rejected and the defendant again filed an application under Order 9, Rule 13, CPC which was also dismissed holding that the defendant failed to prove good and sufficient cause for their absence. In paras 25 and 26 of the said case it was held as under: 25. The said application was rejected and the defendant again filed an application under Order 9, Rule 13, CPC which was also dismissed holding that the defendant failed to prove good and sufficient cause for their absence. In paras 25 and 26 of the said case it was held as under: 25. In application under Order 9, Rule 7 of the Code, however, apart from questioning the correctness or otherwise of an order passing the case for ex parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. 26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) had two clear options to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceeding simultaneously but in the event the appeal is dismissed as a result thereof of the ex parte decree passed by the trial Court merges with the order passed by the appellate Court, having regard to the explanation appended to Order 9, Rule 13 of the code, a petition under Order 9, Rule 13 could not be maintainable. However, explanation I appended to the said provision does not suggest that the converse is also there. 18. The next case relied is the case of Sakaldew Prasad Sahani AIR 2007 (NOC) 1675, which relates to refusal of the executing Court to entertain and examine the plea of deficient execution of decree and the scope of revision under Section 115(1) CPC. In that case the plaintiff was a petitioner in a revision petition, who put his signature on the Bailiffs report at the time of execution of the decree but found subsequently that the execution of decree suffered from deficient delivery of possession of suit land. The plaintiff/decree holder then applied before the executing Court to examine the matter which was dismissed by the executing Court on being objected by the defendant. On approaching this Court in revision against the said dismissal, it was held that Section 115(1) CPC speaks of order passed in the course of a suit or proceeding. The plaintiff/decree holder then applied before the executing Court to examine the matter which was dismissed by the executing Court on being objected by the defendant. On approaching this Court in revision against the said dismissal, it was held that Section 115(1) CPC speaks of order passed in the course of a suit or proceeding. It was also held that when the decree holder raised a grievance regarding deficient execution of decree, it was out of the Court to examine the contention and allow the revision petition by remanding the case to Court below for dealing with the matter in accordance with law. 19. The cases as cited above by the learned Counsel, Mr. Khan, in my considered view, instead of rescuing the plaintiff/petitioner, helped in upholding the impugned Order/direction of the learned District Judge to remand the case for hearing on merit. 20. Going through the records and the Orders passed by the Courts below on various occasion in the main Title Suit, Title Execution case and other connected Misc. cases, it appears that there are some controversies in regard to some factual aspects namely: 1. Whether summons was duly served on the defendant respondent. 2. Whether the defendant/respondent was prevented by any sufficient and cogent cause from appearing when the suit was called upon for hearing. 3. Whether the defendant/respondent while taking the plea of being prevented from appearing in the suit due to his illness could adduce/has adduced sufficient proof thereof by examining himself and the attending physician/Doctor for allowing his petition under Order 9, Rule 13, CPC. 4. Whether the ex parte decree was duly executed as per existing procedure pre scribed under Rule 139 of the Civil Court Rules and Order framed by the Gauhati High Court which contemplates, amongst others, (a) drawing up of a decree, (b) service of notice on the judgment-debtor in Form No. (M) 5 and (c) providing of facilities to the judgment-debtor to examine the original record etc. The above controversies are question of facts connected with the crux of the matter, namely whether ex parte decree is sustainable or liable to be set aside under Order 9, Rule 13. 21. The above controversies are question of facts connected with the crux of the matter, namely whether ex parte decree is sustainable or liable to be set aside under Order 9, Rule 13. 21. The findings of the appellate Courts below is that the execution of decree was not complete in its true sense inasmuch as the plaintiff/decree holder himself filed a petition bearing No. 337/01 dated 21-9-2001 before the learned Munsiff for removal of goods and handing over vacant possession of the suit premises to him. Besides the records as received from the Court below do not reveal that the decree was executed as per procedures prescribed under Rule 139 of the Civil Court Rules and Order framed by the Gauhati High Court. That apart the learned Courts below have not given any finding on the service of summons on the defendant or as regards the sufficiency of the causes preventing him to appear in the suit by adducing evidence which are necessary for the purpose of disposing the application under Order 9, Rule 13. 22. The learned appellate Courts below have, at least, recorded one vitally important finding that the decree was not duly executed as required under the Rules and such findings of fact I am afraid, can be interfered with by this Court in exercise of its revisional jurisdiction. Once it is found that the decree has not been duly executed, the provision of Order 9, Rule 13 is attracted and it is incumbent upon the trial Court to hear and dispose of the application under Order 9, Rule 13 on merit. 23. I find the impugned judgment and Order dated 26-10-2006 has been passed by the learned appellate Court in exercise of its jurisdiction and in accordance with the provisions of law without committing any error of procedure for arriving at the ultimate right decision on the application under Order 9, Rule 13 and no interference is, therefore, called for, I, therefore, find no legal infirmity in the impugned judgment and order passed by the learned District Judge in remanding the case to the learned Munsiff with a direction to hear the parties and dispose of the aforesaid application under Order 9, Rule 13, CPC on merit. This Court is bound to do so in view of the Ruling of the Apex Court in Bharat Singh v. Narendra Kumar reported in 2004 (13) SCC 691 in which it is held that ordinarily litigant should not be denied liberty of contesting case on merit. 24. Before parting with the records, I cannot help pointing out that the Defendant/Respondent is a tenant of the plaintiff/petitioner and the said tenancy ended by the month of September 1999 as per the last agreement executed on 1-4-1999 between the parties. There was no fresh agreement, signed between them extending the tendency and this position is not disputed by the Defendant/Respondent. The Defendant/Respondent, after the title suit was instituted did not pay the monthly house rent from the month of October 1999 causing financial loss to the plaintiff/petitioner. There are sufficient materials on record that the Defendant/Respondent has been avoiding appearance without filing written statement as a measure of his delaying tactics, in spite of his knowledge about the institution of the title suit, and in fact, he filed hazira (appearance) on a date, and thereafter, he remained absent taking the plea that no summons was received and he was prevented from appearing in the case owning to "illness", "residential" and "personal difficulty" etc. I am constraint to say that the conduct shown so far by the defendant/respondent is undesirable inasmuch as it has caused unnecessary delay in disposing the title suit. This petition is found liable to be dismissed on technical grounds only as indicated above. It is, therefore dismissed with the following direction to the learned Munsiff. 1. To hear both the parties after due notice and dispose of the matter on merit within three months from the date of receipt of the records along with this order; 2. To find out, during the hearing, from records whether, in fact, summons was duly served on the defendant. 3. To require during the hearing, the defendant to prove his illness by adducing sufficient proof and evidence by examining himself and the attending physician/doctor as per law. Send down the record immediately. Petition dismissed