JUDGMENT The legal representatives of unsuccessful defendants in these appeals challenge the judgment and decree passed by the learned District Judge, Bhubaneswar in T.A. No. 01/18, 02/19 of 2003/2000 whereby the judgment and decree passed by the Civil Judge (Sr. Division), Bhubaneswar in O.S. No. 13 and 14 of 1995 have been confirmed. 2.For the sake of convenience, in order to bring clarity and to avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the trial Court. The respondent no. 1 as the plaintiff filed above noted O.S. No. 13 and 14 of 1995 for setting aside the judgment and decree passed by the learned Munsif, Bhubaneswar (as it was then) in O.S. No. 152 of 1981 in favour of defendant no. 1 and against the State of Odisha and vender of the plaintiff on the ground that it has been fraudulently obtained with the further relief of declaration of right, title and interest of the plaintiff over of the suit land. The suits having been decreed by the common judgment, above noted appeals were preferred in the Court of District Judge, Bhubaneswar and those have also been dismissed. 3.Plaintiff’s case is that the suit land vested with the State of Odisha on 24.08.1953 and it was accordingly recorded under Khata No. 245 appertaining to plot No. 783 and 784 as per Major Settlement record of the year 1962. The plaintiff no. 1 being an Ex-Army personnel was settled with land measuring Ac.5.000 decimals by the State in Lease Case No. 580 of 1967-68 out of that plot no. 783 in total measuring Ac. 15.000 decimals and out of plot no. 748 measuring Ac. 18.25 decimals. The lands were demarcated and shown being assigned with separate plot no. 783 / 1326 for an area of Ac. 2.500 decimals and plot no. 784/1327 for an area Ac. 2.500 decimals. Accordingly, the record of right Ext. 19 was issued in his favour. Thereafter, he sold the suit land by registered sale-deed dated 17.12.1981 by (Ext. 20) and 04.02.1982 (Ext. 21) measuring an area Ac. 1.000 decimals and Ac. 1.5000 decimals out of plot no. 784/1327. Plaintiff no. 2 being rightful owner and in possession paid rent regularly to the defendant No.3 and also got the said land mutated in his favour vide (Ext. 24). When plaintiff no. 2 found the defendant no. 20) and 04.02.1982 (Ext. 21) measuring an area Ac. 1.000 decimals and Ac. 1.5000 decimals out of plot no. 784/1327. Plaintiff no. 2 being rightful owner and in possession paid rent regularly to the defendant No.3 and also got the said land mutated in his favour vide (Ext. 24). When plaintiff no. 2 found the defendant no. 1 creating disturbance in her possession stacking a claim over there. The matter was enquired into. Then it came to be known that defendant no. 1 had obtained an exparte judgment and decree in O.S. No. 152 of 1981 from the Court of Munsif, Bhubaneswar behind the back of plaintiff no. 1 without service of notice and by filing and proving totally fraudulent, forged and manufactured documents as genuine in support of the claim. So, the suits came to be filed. The State supported the case of the plaintiffs. 4.The defendant no. 1 filed the written statement taking necessary defence which had been struck down by the learned Civil Judge (Sr. Division) under Order-11, Rule-21 of the Code of Civil Procedure by a specific order to that effect as required under law on 18.08.1987, since the defendant no. 1 failed to comply with the order in properly answering the interrogatories delivered to him in writing under Order 11 Rule 1 of the Code. However, he contested the suit by participating during hearing. 5.In the trial, seven issues were framed. Issue No.3, 4 and 7 are inter-linked. The fate of the suits hinges upon the finding as to whether the defendant no. 1 had obtained the exparte decree in O.S. No. 152 of 1981 by practicing the fraud by way of filing fraudulent, manufactured and forged documents and pressing those as genuine. The other issues relating to the plaintiff no. 2’s right, title and interest on the basis of lease granted to the vendors of plaintiff no. 1 and the sale-deed executed by plaintiff no. 2’s vender are consequential. It may be mentioned here that from the side of the defendants, no witness was examined nor any document has been admitted in the evidence. The trial Court found the suit to have been decided behind the back of the plaintiff no. 1 without serving any notice on him and making the notice sufficient giving his wrong address, when plaintiff no. 2 was not a party to the said suit. The trial Court found the suit to have been decided behind the back of the plaintiff no. 1 without serving any notice on him and making the notice sufficient giving his wrong address, when plaintiff no. 2 was not a party to the said suit. The documents projected by the defendant no. 1 in O.S. No. 152 of 1981 have also been found on detail analysis of evidence to be forged, fabricated and manufactured and to have projected as genuine for the purpose. In view of above, the trial Court decreed the suit declaring the judgment and decree passed in O.S. No. 152 of 1981 to have been obtained by defendant no. 1, by practicing fraud behind back of plaintiff no. 1 and 2 and as such to be not binding on them. The right, title and interest of plaintiff no. 2 over the suit land has also been declared on the basis of the evidence both oral and documentary adduced in the suit. On appeal, the findings on those issues were further put to test by reappraisal of evidence in the backdrop of the legal position. The Appellate Court finally concurred with the finding of the trial Court that the claim of defendant no. 1 is based on fraudulent documents and accordingly the decree in O.S. No. 152 of 1981 was obtained without notice, practicing fraud by unilaterally proving those documents as genuine. The striking out the defence though questioned as illegal, the objection has been overruled. 6.The Second Appeal has been admitted on the following substantial questions of law:- (1)Whether a party inspite of filing Misc. Appeal against order passed under Order 11 Rule 21 of the Code of Civil Procedure 1908 and directly preferred an appeal against his entire decree? (2) Whether the 1st Appellate Court is illegally bound to answer the legality of the order striking out the defence? 7. Learned counsel for the appellant submits that though no appeal was preferred against the order striking out the defence of the defendant / appellant as passed by the learned Civil Judge (Sr. Division), Bhubaneswar on 19.08.1987, nonetheless, the correctness of the said order get very well be questioned in this Second Appeal, in view of Section 105 of the Code. He next submits that such order of striking out the defence is wholly illegal. and it docs not stand to scrutiny. Division), Bhubaneswar on 19.08.1987, nonetheless, the correctness of the said order get very well be questioned in this Second Appeal, in view of Section 105 of the Code. He next submits that such order of striking out the defence is wholly illegal. and it docs not stand to scrutiny. In this direction, he contends that when order 11 rule 21 of the Code is pressed into service for an order of striking out the defence, the same can only be so ordered after due notice to the parties and after giving them the reasonable opportunity of being heard. The said procedure having not been followed in the case by serving notice upon the defendant no. 1 and affording an opportunity to him before the defence was struck off, the order dated 19.08.1987 is nonest. Therefore he contends that this defendant no. 1 has been highly prejudiced being not able to place his defence and lead the evidence accordingly. So, he urges that it is a fit case for remand to the trial Court for the trial afresh in accordance with law and for a decision thereof. Learned counsel for the respondent nos. 1 and 2 submits that the order dated 18.08.1987 striking off the defence does not fall within the ambit of sub-Section 1 of Section 105 of the Code. So, he contends that the order cannot be called in question in an appeal from the judgment and decree which have been finally passed. According to him, said order also does not suffer from any such error, defect or irregularity as to have affected the decision of suit on merit. With regard to non-service of notice, responding to the submission of the learned counsel for the appellant, he has placed the reply adhering to provision of order 3 rule -5 of the Code and relying on a decision of Hon’ble apex Court in case of FCI Vrs. E. Kuttapan; AIR1993 SC 2629. Taking great pain, he has placed the entire order-sheet of the Court below showing the entire exercise made in finally passing the order striking out the defence and thereby drawing the attention of the Court that everything has been done in adherence to the procedure as mandated under the Code. E. Kuttapan; AIR1993 SC 2629. Taking great pain, he has placed the entire order-sheet of the Court below showing the entire exercise made in finally passing the order striking out the defence and thereby drawing the attention of the Court that everything has been done in adherence to the procedure as mandated under the Code. 8.The second limb of submission of the learned counsel for the appellant is that the Court below have committed illegality in setting aside the judgment and decree passed in O.S. No. 152 of 1981 on the ground of non-service of notice upon the respondent no. 1. According to him, the notice was duly served. Learned counsel for the respondent no. 1. submits that such a question is a pure question of fact and both the Courts below have concurrently found the factum of non-service of notice upon these respondents on examination of evidence in detail. Therefore, he contends that the said findings are no more open to challenge on merit. He also refutes the submission that there was service of notice. He contends that bare perusal of the documents exhibited in the suit makes the position as clear as day as to how fraudulently the decree in the O.S. No. 152 of 1981 was obtained. He in course of argument has invited the attention of this Court to the pertinent documents. Learned counsel for the appellant’s reply to the above is that the above aspects cannot be so found since these appellants did not get any opportunity to explain those by placing proper pleading and leading evidence in support of the defence. 9.It has been specifically provided in Sub-Section (1) of Section 105 of the Code that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction where a decree is appealed from any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. Thus, a careful reading goes to show that an order so as to fall within the ambit of sub-Section (1) of Section 105 of the Code, first of all, there must be an error, defect or irregularity therein. Secondly, the order must be such that it would be found to have affected the decision of the case. Thus, a careful reading goes to show that an order so as to fall within the ambit of sub-Section (1) of Section 105 of the Code, first of all, there must be an error, defect or irregularity therein. Secondly, the order must be such that it would be found to have affected the decision of the case. When these above conditions are satisfied, the same can be a ground of objection and it may be so set-forth as a ground in the memorandum of appeal filed challenging the final judgment and decree. 10.Adverting to the submission of the learned counsel for the appellants, it is seen that the error, defect or irregularity in the said order as has been pointed out to be one on account of non-service of notice to the parties prior to striking off the defence basing on which the next limb of submission stands that the appeal has to be allowed with an order of remand of the suit to the trial Court for adjudication a:fresh affording due opportunity to the defendant no.1. It is the provision of law that an order of striking out the defence may be made on such application after notice to the parties and giving them reasonable opportunity of being heard. In the present case, such order has been passed by the trial Court on 17.09.1986 where the trial Court has rejected the affidavit by the defendant no. 1 having made a detail discussion as regards each of the questions required to be answered and finally on facts it has been stated that the interrogatories have not been properly answered as directed. With the above the petition dated 17.01.1987 came for consideration when the plaintiff made a prayer to strike out the defence filed by the defendant no. 1. Objection was invited. It was so filed and then after hearing finally order has been passed on 19.08.1987 striking out the defence. It is no doubt correct to say that the parties were not issued with any notice. However, the undeniable fact remains that the defendants were represented by their counsel in the suit who received the copy of the petition. He also filed objection and took part in the hearing of that petition. It is no doubt correct to say that the parties were not issued with any notice. However, the undeniable fact remains that the defendants were represented by their counsel in the suit who received the copy of the petition. He also filed objection and took part in the hearing of that petition. So, it cannot at all be said that such matter had been taken up behind the back of the parties and they had no knowledge about that, when the relationship between the party and the lawyer was subsisting and no such assertion is made throwing any light as regards something in detrimental to such relationship or for any other reason to have deliberately acted against the interest. 11. Moreover, if we have a look at the provision of rule 5, order 3 of the Code, the matter stands further cleared that in such eventuality there was no necessity of directly issuing notice to the parties. The provision reads that any process served on the pleader who has been duly appointed to act in Court for any party or left at the office or ordinarily residence of such pleader and whether the same is for the personal appearance of the party or not shall be presumed to be duly communicated and made known to the party whom the pleader represents and unless the Court otherwise direct shall be as effectual for all purposes as if the same has been given to or served on the party in person. In fact, in view of such provision the Hon’ble Apex Court in case of F.C.I. Vrs. E. Kuttapan, A.I.R. 1993 SC 2629 have clearly held that notice to the pleader is notice to the party. Therefore, the submission of the learned counsel for the appellants that the order contains an error, defect or irregularity as it has been so passed without service of notice to the parties cannot be accepted. I am afraid of accepting the said submission also for another reason thinking for a moment and feeling that it may lead to serious consequences pushing the conclusion of a suit to uncertainty. Many a provisions in the Code indicate that the interlocutory order/s have to be passed with due notice to the non-applicant and upon hearing. I am afraid of accepting the said submission also for another reason thinking for a moment and feeling that it may lead to serious consequences pushing the conclusion of a suit to uncertainty. Many a provisions in the Code indicate that the interlocutory order/s have to be passed with due notice to the non-applicant and upon hearing. Even during the progress of the suit, the Court is called upon to pass some order or other affecting the right of the parties in some way or other in course of the hearing and those are being passed hearing the parties and inviting objections if any. The Court in those matters when the party is represented by the counsel in the suit considers the service of the copy of the petition upon the counsel as service of the same upon party. In those cases, the party’s challenge to the said orders to be without notice to him is wholly untenable. The whole purpose is to afford due opportunity of hearing to the party likely to be affected for passing such order for consequential suffering and being prejudiced. This has been found to have been fully complied and followed in both letter and spirit in the instant case. When this is the situation the very first parameter goes unfulfilled. Thus there arises no further need to go to examine as to how far it has affected the final outcome of the suit. 12.In view of aforesaid when after the said order which is an appealable one under order 43 rule 1(f) of the Code and the appellants have not filed an appeal specifically challenging the said order and have in the present appeal such ground is not available. The decision relied upon by the learned counsel for the appellants in case of State of Punjab and another Vrs. Jagan Nath Chhichra, A.I.R. 1968 Punjab and Haryana 298 concerns with a case whose facts and circumstances are completely different. Similarly, the other cited decision in case of R. Ganga Reddy Vrs. P. Raghunatha Reddy, A.I.R. 1978 A.P. 457, the High Court was in seisin of a revision directly against that order striking out the defence, which is not the case here. In case of M/s. Babbar Sewing Machine Co. Vrs. Similarly, the other cited decision in case of R. Ganga Reddy Vrs. P. Raghunatha Reddy, A.I.R. 1978 A.P. 457, the High Court was in seisin of a revision directly against that order striking out the defence, which is not the case here. In case of M/s. Babbar Sewing Machine Co. Vrs. Tirlok Nath Mahajan, A.I.R. 1978 S.C. 1436, the High Court was hearing appeal against that very order of striking out the defence which is not the situation in the instant case. In case of M. Subharayudu and Ors, Vrs. Rajamma : 2003 (4) ALD 893, the High Court of Andhra Pradesh has held that every interlocutory order cannot be made a ground of appeal in view of Section 105(1) of the Code. Non-appealable order can be challenged in appeal only on fulfillment of conditions. Firstly order must be suffering from error or defect, secondly such order must have the affect over decision of the case and in such case the same be set forth as the ground of appeal. In the preset case, provisions of order 11, rule 1 of the Code have been followed. As already stated no such defect, error or irregularity is found in the procedure, when also the ground of non-service of notice to the party is untenable as per the discussions made in view of service of copy of the petition upon the learned counsel for the appellants, who filed the objection and contested the matter on behalf of the parties and in the absence of any complain against him on any ground whatsoever. The very purpose of service of notice is to afford the party an opportunity to take part in the hearing before his defence is struck off by providing due opportunity which certainly puts him in a handicapped position. But all these appear to have been scrupulously followed in the present case. The last part of the order dated 19.08.1987 shows that there was concession by the defendant no.1 and further prayer by him on behalf of the party to permit him to contest which in fact, he has so done. So, normally an appeal against such consent order is also in competent. Therefore, it cannot also be taken up as a ground banking upon and taking advantage of the provision of Section 105 (1) of the Code. So, normally an appeal against such consent order is also in competent. Therefore, it cannot also be taken up as a ground banking upon and taking advantage of the provision of Section 105 (1) of the Code. 13.Coming to the next ground of attack that the trial Court committed illegality in setting aside the judgment and decree of O.S. No.152 of 1981 on the ground that neither any notice was given to the defendants before restoring the case to file, nor any notice was sent to the defendants after its restoration. It is urged that notice to the defendants is not mandatory. Order-sheet of O.S. No.152/81 has been proved and marked as Ext.15. Order dated 07.01.1982 shows that notice to defendant no.3 who is the plaintiff in O.S. Nos.13 of 1985 and 14/1985 and respondent no.1 in this appeal returned without service for want of correct address. Again by order dated 28.01.1982 summon was issued. by post against defendant no.3 which also returned with noting ‘Not Known’. So, there was an order for publication of notice in Odia daily news paper ‘The Samaj’. On 18.03.1982, as the plaintiff failed to submit the draft notice for publication, the suit (O.S. No. 152 of 1981) was dismissed for default. Order-sheet dated 21.06.1982 and other orders go to show that before restoration of the suit in O.S. No.152 of 1981 to file and after restoration and before ex parte hearing no notices were sent to defendant no.3 of the said suit. The Hon’ble High Court of Orissa, in Laxminarayan Agrawala Vrs. Lachman Prasad Agarwala, reported in Vol. 39 (1973) CLT 264, following decision of Ratnakar Ray vrs. Kulamoni Roy & others; reported in AIR 1951 Orissa 266 and also Prahallad Prusty vrs Sheokh Abdul Rahman, reported in AIR 1966 Orissa 232 held that since defendant has not appeared due to non service of summons and was not set ex parte, notice must be issued to defendant before the dismissal order is set aside as it has given valuable right in favour of the defendant. It will be violation of principle of natural justice to deprive the defendant of such right without hearing him or giving him adequate opportunity of being heard being participation therein. The Lordships of Allahabad High Court in “Long Life Carpet Industries, Gaharpur & others Vrs. It will be violation of principle of natural justice to deprive the defendant of such right without hearing him or giving him adequate opportunity of being heard being participation therein. The Lordships of Allahabad High Court in “Long Life Carpet Industries, Gaharpur & others Vrs. Smt. Kesar Jahan, reported in AIR 1988 Allahabad 55” held that for restoration of the suit dismissed ex-parte without knowledge of the defendants and the date fixed for hearing of the case the defendant must be given notice of hearing of the case after restoration of the suit. The learned Counsel for the appellant before the Court below cited “Binod Kumar Agarwala & others vrs. Mst. Satyavbhama Debi, reported in AIR 1988 Ori. 44 ” in support of his submission that, notice to the defendant is not mandatory for restoration of the suit and after restoration, for hearing of the suit. This decision has however been overruled by Division Bench judgment in the case of “Achhuti @. Achyutananda Bal Vrs. Payodhar Bal & others reported in Vol. 73 (1992) C.L.T. 699”. In Binod Kumar (supra), both the parties were before the Court, when suit was dismissed for default. The trial Court restored the case to file without giving notice to the defendants. The Hon’ble Single Judge of the High Court of Orissa held that, since the parties were before the Court, no notice is required to be sent to the defendants for restoration of the case. This Court by judgment in Achhuti @ Achyutananda Bal (supra) ouerruled the decision of the Single Bench taking into consideration Orissa High Court Amendment to Order IX Rule-4 of C.P.C. At. page 704, it has been held as under:- “xx xx xx We are, therefore, of the view that in view of the decision of the Division Bench in Ratnakar Ray’s case (supra) and in view of the decision in Prahalad Pursty’s case and Laxinarayan Agrawal’s case (supra) referred to above, it is not correct to broadly lay down as proposition of law that notice to defendant in a proceeding under Order 9, Rule 4, C.P.C. is not mandatory. Necessity of issuing notice would depend upon the facts and circumstances and the guidelines indicated in the three cases, referred to above. Necessity of issuing notice would depend upon the facts and circumstances and the guidelines indicated in the three cases, referred to above. The aforesaid view with some modification and clarification has been recognized and reinforced by the Orissa Amendment to Order 9, Rule 4, C.P.C. which came into effect from 25.05.1984 and reads as under. Provided that, in cases where the defendant had entered into contest by filing his defence no suit shall be restored without notice to him.” The above proposition has also been held by Rajasthan in a decision in the case of “Shishupal Vrs. Manak Chand”, AIR 1992 Raj. 57 . In the present case, the defendants of O.S. No.52 of 1981 were not noticed before the suit was restored to file and no notice for hearing of the suit was sent to the defendants and setting them ex-parte after restoration, suit has been accordingly disposed of. So the conclusion is that the proceeding of O.S. No.52 of 1981 stood vitiated for the above reason of non-service of notice. 14. Now comes the submission for consideration about commission of fraud in getting the ex parte decree in O.S. No. 152 of 1984 by producing forged and manufactured documents. Before addressing this submission of learned counsel for the appellants that the finding is perverse, it may be stated here that the Courts below have rendered concurrent findings basing upon documents and upon their examination that the ex parte decree in O.S. No.152 of 1981 is the outcome of fraud and misrepresentation. This being the position the finding can be turned upside down only in case the same is based on perverse appreciation of evidence or simply on conjectures and surmises. Let us have a quick survey over the evidence on the subject which are mostly documentary. The sale deed dated 28.12.1964 marked as Ext.3 in O.S. No.152 of 1981 is having a map. In this suit said sale deed’s copy maintained in Sub-Registrar’s office has been proved being marked as Ext. 1 and the map is Ext. 1(a). The two maps being compared, the map of Ext. 3 of O.S. No. 152 of 1981 is found to be a different one when there also comes no explanation whatsoever. Similarly, the rent receipts in O.S. No. 152 of 1981 have been proved to have been issued to others in reality. So forgery in those documents has been established. 1(a). The two maps being compared, the map of Ext. 3 of O.S. No. 152 of 1981 is found to be a different one when there also comes no explanation whatsoever. Similarly, the rent receipts in O.S. No. 152 of 1981 have been proved to have been issued to others in reality. So forgery in those documents has been established. When mutation order in Mutation Misc. Case No. 247 of 1969 was asked to be produced, it had been said that it was not available in the office. Now the report has come that from the mutation officer that this mutation case was not filed by defendant No. 1. In this way each document has been meticulously examined and carefully considered and found that all such are forged. Moreover, the defendant No. 1 has not shown this suit land in a ceiling case. The Courts below have made a thread bare discussion of evidence mainly documentary evidence and appeared to have been rightly held that the plaintiff of O.S. No. 152 of 1981 has obtained the ex-parte decree therein fraudulently. This Court even finds no such infirmity or illegality. So the submission of learned counsel for the appellants on that score cannot be countenanced. 15.The first substantial question of law being accordingly answered, as per the aforesaid discussions and reasons, and the answer to the other question being consequential and dependant on the answer on the first question, thus accordingly receives the answer. The submission as regards the substantial question of law on the perverse finding on the score that ex-parte decree in O.S. No. 152 of 1981 obtained by committing fraud is also repelled as discussed above. 16.Resultantly, the appeals stand dismissed with cost throughout. Appeal dismissed with costs.