JUDGMENT : Rajesh Bindal, J.—The order dated 14.02.2013 passed by the learned Additional District Judge, Jammu, is under challenge in the present appeal. Vide aforesaid order, application filed by the appellant, seeking condonation of delay of 209 days in filing the appeal for setting aside of ex-parte final decree in a suit for partition dated 08.04.2009, was dismissed. 2. Learned counsel for the appellant submitted that the appellant in the present case is a senior citizen, about 70 years of age now. In the suit for partition filed by the respondent No.1 the appellant was wrongly impleaded as a party though his property could not have been possibly included in the partition suit. The preliminary decree was passed on 29.08.2002. Thereafter a local Commissioner was appointed for effecting partition. Having come to know about passing of the preliminary decree, the appellant filed application for setting aside of the preliminary decree on 09.12.2002. The same was dismissed by the trial Court on 21.08.2004. The order was impugned by filing CIMA No. 214/2004 which was dismissed by this Court on 30.05.2006. It was thereafter that ex-parte final decree was passed by the Court below on 08.04.2009 without issuing any notice to the appellant. 3. Having come to know about passing of ex-parte final decree, the appellant preferred application seeking setting aside of the ex-parte preliminary decree as well as the final decree. The same was accompanied by an application seeking condonation of 209 days delay in filing thereof. The same having been dismissed, the appellant is before this Court. 4. The contention raised by the learned counsel for the appellant is that the appellant is a senior citizen. Though he had engaged a counsel but he did not apprise him about the latest status of the case. His case was not properly pleaded and for that reason he should not be made to suffer. Before passing the final decree, after the preliminary decree had been passed, fresh notice was required to be issued. In support of the plea, reliance was placed on a judgment of Calcutta High Court in case titled as Mst. Shamshad Begum and ors vs. Ganesh Chandra Shaha and anr, AIR 2008 Calcutta 65, and judgments of this Court in cases titled as Jagdish Singh vs. Mohan Lal, S.L.J 1990 J&K 254 and Pir Ghulam Hassan and ors vs. Syed Mohammad Shah and ors, 1985 KLJ 519. 5. Shamshad Begum and ors vs. Ganesh Chandra Shaha and anr, AIR 2008 Calcutta 65, and judgments of this Court in cases titled as Jagdish Singh vs. Mohan Lal, S.L.J 1990 J&K 254 and Pir Ghulam Hassan and ors vs. Syed Mohammad Shah and ors, 1985 KLJ 519. 5. On the other hand, learned counsel for the respondents submitted that it is not a case where the appellant was not aware of the proceedings of partition of the property pending against him. The proceedings were taken by the Court below after due service of notice. The appellant is not an illiterate. After the preliminary decree was passed, a local Commissioner visited the site and measured the suit property in presence of the parties. At every stage of the proceedings, the appellant was well aware of the status of the case but he never sought to raise any objection. The only idea is to delay the proceedings at every stage. He was proceeded against ex-parte. He filed application for setting aside the ex-parte preliminary decree, which was dismissed. Against the dismissal thereof even appeal was also dismissed in default. The final decree is strictly in terms of the preliminary decree passed by the court below. In terms of Section 97 of the Code of Civil Procedure, in case no appeal is filed against the preliminary decree, appeal against the final decree is barred. The appellant is trying to take a circular route to challenge the final decree by filing application for setting aside thereof. There is no merit in the present appeal and the same deserves to be dismissed. 6. I have heard learned counsel for the parties and perused the paper book. 7. The litigation in the case in hand started way back in the year 2001 when respondent No.1 had filed suit for partition of the properties mentioned therein. The present appellant was impleaded as defendant No.1. Both the appellant and respondent No.1 are real brothers. Though a plea is sought to be raised that the appellant is a senior citizen, hence, was totally dependent on his counsel to apprise him about the status and proceedings taken in the case. The present appellant was impleaded as defendant No.1. Both the appellant and respondent No.1 are real brothers. Though a plea is sought to be raised that the appellant is a senior citizen, hence, was totally dependent on his counsel to apprise him about the status and proceedings taken in the case. However, considering the fact that when the appeal was filed in this Court in the year 2013, the appellant claimed himself to be 68 years of age, meaning thereby that when the proceedings for partition were initiated in the year 2001, the appellant was about 53/54 years of age. The appellant is not an illiterate. 8. The facts which are evident from the record of the Court below are that, after filing of the suit for partition by respondent No.1 on 25.08.2001 service of the present appellant was affected and he was represented through his counsel on 20.09.2001. Power of attorney was filed on his behalf. Thereafter he was represented on number of dates of hearings through his counsel. It is further evident from the record that the Court below that defendant Nos. 4, 5, 6 and 7 were also proceeded against ex-parte on 19.10.2001 and 13.11.2001. The present appellant was proceeded against ex-parte on 21.08.2002. Thereafter the evidence of the respondent-plaintiff was recorded on 26.08.2002 and the matter was adjourned to 29.08.2002 for further proceedings. On the next date of hearing i.e. 29.08.2002, preliminary decree was passed by the trial court. Shri M. M. Baru, Advocate was appointed as Court Commissioner for effecting partition. Before proceeding further in the matter, the Court Commissioner appointed by the Court issued notices to the parties concerned through the process of the Court for appearance before him on 25.09.2002. The present appellant refused to receive the notice. The report is available on record. Thereafter the Court Commissioner published notice in Daily Excelsior news paper on 27.09.2002, requiring the parties to attend his office on 02.10.2002. On that date the respondent No.1-plaintiff, defendant-respondent No.2 and defendant-respondent No.3 appeared before the Commissioner. Only the appellant absented. The Court Commissioner, after getting the valuation of the property, proposed the mode of partition vide his report dated 09.11.2002. 9. The appellant was well aware of the proceedings against him, but still he absented and let the ex-parte preliminary decree to be passed. Only the appellant absented. The Court Commissioner, after getting the valuation of the property, proposed the mode of partition vide his report dated 09.11.2002. 9. The appellant was well aware of the proceedings against him, but still he absented and let the ex-parte preliminary decree to be passed. Instead of challenging the aforesaid preliminary decree by availing the remedy of appeal, he preferred to file an application for setting aside of ex-parte preliminary decree dated 29.08.2002. Even Rajinder Parshad, who had appeared before the Court Commissioner when preliminary decree was passed, also filed an application for setting aside of the preliminary decree on 08.10.2002. The learned Court below dismissed both the applications filed by the appellant as well as Rajinder Parshad, for setting aside of ex-parte preliminary decree vide order dated 21.08.2004. On the next date of hearing fixed by the Court, i.e. 20.09.2004 the appellant was represented before the trial Court though by a different counsel. 10. To put the record straight, it may be added that initially the appellant was represented through Shri Mukesh Kumar, Advocate when ex-parte preliminary decree was passed against him. Application for setting aside thereof was filed through Shri S. S. Khajuria, Advocate. After dismissal thereof, the appellant was represented through Shri K. B. Gupta, Advocate. However, there is nothing on record to suggest that the aforesaid order dated 29.08.2004 was challenged any further by Rajinder Parshad. The present appellant challenged the order dismissing his application for setting aside the ex-parte preliminary decree before this Court by filing CIMA 214/2004 which was dismissed for non-prosecution on 30.05.2006. The relevant part of the order is extracted below:— “On 3.5.2006, none appeared. Today also, there is no representation on behalf of the appellant. It appears the appellant has lost interest in prosecuting this appeal. Dismissed for want of prosecution and appearance along with CMP.” 11. It was not pointed out that any application was filed for restoration of the aforesaid appeal which was dismissed for non-prosecution on 30.05.2006. 12. Though after the dismissal of the application for setting aside of the ex-parte decree the appellant was represented before the Court below but after appearance on one date he still absented further. Ex-parte final decree was passed by the Court below on 08.04.2009. 12. Though after the dismissal of the application for setting aside of the ex-parte decree the appellant was represented before the Court below but after appearance on one date he still absented further. Ex-parte final decree was passed by the Court below on 08.04.2009. It was specifically recorded in the aforesaid order passed by the Court below that the report of the Court Commissioner was not different from the preliminary decree and the preliminary decree had not been challenged by any of the affected parties, hence, the final decree was passed. 13. Evidently the appellant was watching the entire proceedings. He did not prefer any appeal against the final decree but thought of filing application on 03.12.2009 for setting aside of the ex-parte preliminary decree dated 29.08.2002 and the final decree dated 08.04.2009 through his counsel Shri B. M. Gupta, Advocate. The aforesaid application for setting aside of ex-parte preliminary decree as well as final decree was accompanied by application for condoning delay of 209 days in filing thereof. 14. A strange fact to be noticed is that prayer was also made for setting aside of ex-parte preliminary decree passed on 29.08.2002, the application for setting aside of which had already been dismissed by the court below vide order dated 21.08.2004 against which the appeal filed by the appellant before this Court, being CIMA No. 214/2004 was dismissed for non-prosecution on 30.05.2006. 15. The application seeking condonation of delay of 209 days in filing the application for setting aside the ex-parte final decree was considered by the Court below and was dismissed vide impugned order dated 14.02.32013. 16. The Court below found that the appellant was fully aware of the proceedings of partition of the property at different stages. He had been appearing through different counsels whenever it suited him. The fact that he had been filing applications for setting aside of preliminary decree and final decree is evident of the fact that he was well aware of the proceedings. Even the appeal filed before this Court, seeking to challenge the order dismissing his application for setting aside of ex-parte preliminary decree was also dismissed for non-prosecution. At every stage of the proceedings the appellant was given full opportunity to represent but he purposefully or knowingly thought of absenting from the proceedings. 17. Even the appeal filed before this Court, seeking to challenge the order dismissing his application for setting aside of ex-parte preliminary decree was also dismissed for non-prosecution. At every stage of the proceedings the appellant was given full opportunity to represent but he purposefully or knowingly thought of absenting from the proceedings. 17. It is further not in dispute that the preliminary decree passed by the learned Court below had attained finality as the same was not challenged by the appellant any further and an application for setting aside thereof was dismissed by the trial Court and the order was upheld by this Court. 18. In view of the aforesaid facts being on record and seeing the conduct of the appellant, who wanted to pursue the proceedings against him at his own wish and fancies, I do not find that there is any error in the order passed by the learned Court below in dismissing the application for condonation of delay of 209 days in filing the application for setting aside of ex-parte final decree in a partition suit. 19. The appeal is, accordingly, dismissed.