JUDGMENT : Sharad Kumar Sharma, J. In order to answer the arguments, as it has been extended by the learned counsel for the petitioners in relation to the subject matter which engages consideration in the present writ petition, that emanates from the principal proceedings, which were drawn under Section 229B of the U.P.Z.A. & L.R. Act, would be to the following effect:- i) As to whether there could be a bar of Section 11 of CPC, in filing of an Application under Order 9 Rule 13 of CPC, by the heirs of the deceased whose earlier application at the behest of their predecessor stood rejected which was subsequent to his death? ii) As to whether the principles of Section 11 CPC, would apply at the stage when an Application under Order 9 Rule 13 of CPC is being considered which has been instituted at the behest of the heirs of the deceased, upon whom the principal right and title would devolve on the death of the deceased, who was initially contesting the proceedings? 2. To deal with the facts, a Suit, under Section 229B of the U.P.Z.A. & L.R. Act was preferred by the plaintiffs-petitioners herein, seeking declaration of their right over a land, which was subject matter of the proceedings under Section 229B of the U.P.Z.A. & L.R. Act. At this stage, a detailed deliberation on the factual aspect, as it engaged consideration in the proceedings under Section 229B of the U.P.Z.A. & L.R. Act, is not required to be ventured into, owing to the arguments as it had been extended by the learned counsel for the petitioners, at the stage when the second Application under Order 9 Rule 13 of the CPC, was being considered by the learned trial Court, which has been allowed by the concurrent judgments, which are under challenge before this Court. 3. The Suit thus preferred by the predecessors of plaintiffs/petitioners herein for declaration of their rights, was in relation to a claim of bhumidahri right with regards to the land lying in Khata No.45Mi, Khasra No.46/146 of Haal Khata No. 18 of Village Trilokpur Dani Tehsil Haldwani, District Nainital having a total area 0.607 hect. 3. The Suit thus preferred by the predecessors of plaintiffs/petitioners herein for declaration of their rights, was in relation to a claim of bhumidahri right with regards to the land lying in Khata No.45Mi, Khasra No.46/146 of Haal Khata No. 18 of Village Trilokpur Dani Tehsil Haldwani, District Nainital having a total area 0.607 hect. When the Suit was proceeding after its registration, being Revenue Suit No.22/240 of 2005-06, it is contended by the plaintiffs/petitioners herein that when, despite service of notices, the defendants/respondents had not put in appearance, the Court of Assistant Collector, has resorted to a substitutive mode of service by publication, and consequently, the inference which has been drawn by the present petitioners is that owing to the substitutive mode of service, the presumption would be, that the respondents or their predecessors were having the knowledge of the proceedings of aforesaid Suit No.22/240 of 2005-06 and hence, preference of their Application under Order 9 Rule 13 of the CPC, may not be maintainable, when they have deliberately not contested the proceedings even after filing of the written statement. 4. Be that as it may, after filing of the Suit, it is not in controversy that the State and the Gram Sabha had contested the proceedings and had filed their written statements and consequently, the issues were framed. 5. The suit thus proceeded ex parte and the suit was consequently decreed by the judgment dated 02.04.2007, thereby granting a decree of declaration of right over the land in question, which has already been described above in favour of the plaintiffs/petitioners herein. 6. It is at this stage that after the judgment and decree dated 02.04.2007, the controversy stood germinating, which would now be a subject matter of this writ-petition to be decided on the basis of the arguments, as it has been extended by the petitioners’ counsel. 7. As a consequence of the ex-parte judgment and decree dated 02.04.2007, when the knowledge of the same was attributed to the predecessors of the present respondents, the defendant no.1 therein, he filed an Application under Order 9 Rule 13 of the CPC, as made applicable by virtue of the provisions contained under Section 341 of the U.P.Z.A. & L.R. Act, thereby praying to set aside the ex-parte judgment and decree dated 02.04.2007. 8. 8. Since, the application preferred under Order 9 Rule 13 of the CPC was a belated application and the provision of Limitation Act has also been made applicable by the provisions contained under Section 341 of the U.P.Z.A. & L.R. Act, the application, thus filed therein was supported with the Delay Condonation Application. The application, thus preferred under Order 9 Rule 13 of CPC by the predecessors of the present respondent i.e. late Manohar Singh was registered as Misc. Application No.108 of 2009-10, Manohar Singh Vs. Daulat Singh. The said application remained pending till it was directed to be posted on 04.08.2011. 9. When the application under Order 9 Rule 13 of the CPC, by way of Misc. Application No. 108 of 2009-10, came up for consideration before the Court of Assistant Collector, 1st Class, the same was dismissed for want of prosecution, as none had appeared. A very important aspect is required to be observed at this stage itself, as to what impact the order dated 04.08.2011, would have over the sustainability of an application under Order 9 Rule 13 of the CPC, which has been subsequently preferred by the heirs of late Manohar Singh. The same has had to be visualized in the light of the fact that when the Misc. Case No. 108 of 2009-10 was posted on 04.08.2011, in fact, Manohar Singh had already met with his sad demise on 13.10.2010 i.e., prior to the dismissal of the application preferred under Order 9 Rule 13 of the CPC for want of prosecution. 10. Legally, the order dated 04.08.2011 though it might have been passed on Misc. Application No. 108 of 2009-10 as preferred by the predecessor late Manohar Singh, since it was an order passed against the deceased, it would be a non-est order in the eyes of law. 10. Legally, the order dated 04.08.2011 though it might have been passed on Misc. Application No. 108 of 2009-10 as preferred by the predecessor late Manohar Singh, since it was an order passed against the deceased, it would be a non-est order in the eyes of law. The rejection order of the said application on 04.08.2011 may be that it observes that none had appeared to press the application, but logically, its impact would be that when the applicant was predeceased on 13.10.2010, quite obviously, none would appear on his behalf when the application was taken on 04.08.2011, and hence, the order rejecting the application on 04.08.2011 would be treated as to be an order non-existing in the eyes of the law as having been passed against a deceased person apart from the fact it was not an adjudication of application under Order 9 Rule 13 of C.P.C on merits. 11. The heirs of late Manohar Singh after having been attributed with the knowledge of the order of rejection of an Application under Order 9 Rule 13 of the CPC on 04.08.2011, the heirs of the deceased preferred an application under Order 9 Rule 13 of the CPC to be read with Section 151 CPC by filing the same on 18.05.2016 praying for to setting aside the ex-parte judgment and decree dated 02.04.2007 as it was rendered in Revenue Suit No.22/240 of 2005-06. 12. It is contended by the learned counsel for the petitioners that since the earlier application which had been preferred by late Manohar Singh on 25.11.2009, seeking recall of an exparte decree dated 02.04.2007, it already stood dismissed on 04.08.2011, the subsequent filing of an application by the heirs of deceased Manohar Singh on 18.05.2016, would be barred by the provisions contained under Section 11 of the CPC and it has been argued that principally the proposition of res judicata would apply. The application thus preferred by the heirs of late Manohar Singh was numbered as Misc. Application No. 222 of 2016. The application thus preferred by the heirs of late Manohar Singh was numbered as Misc. Application No. 222 of 2016. The same was opposed by the present petitioners by filing an objection to it, but the Court of Assistant Collector, 1st Class, found the said application to be legally sustainable and consequently allowed the same by setting aside the judgment and decree dated 02.04.2007 and restored the suit to its original number to be decided afresh on its own merits, for declaration of rights to land in dispute, to be property covered by definition of land under Section 3(14) of U.P.Z.A. & L.R. Act. 13. The said judgment was subjected to a challenge at the behest of petitioner in a Revision, being Revision No.107/2015-16, as it was preferred by the petitioners under Section 333 of the U.P.Z.A. & L.R. Act. The said Revision too had been dismissed by the Revisional Court by virtue of the impugned order dated 01.07.2017, holding therein that the second application preferred by the heirs of the deceased Manohar Singh under Order 9 Rule 13 of CPC to be read with Section 151 would be maintainable, and hence the present writ-petition. 14. In order to deal with the issue as to whether at all the principles of Section 11 of CPC would be attracted on an application preferred under Order 9 Rule 13 of CPC by the heirs of deceased Manohar Singh, whose earlier application was dismissed after his death, by filing the same before the learned Court of Assistant Collector, 1st Class, on 18.05.2016, it becomes inevitable for this Court to deal with as to what would be the implications and purpose of the provisions contained under Section 11 of the Code of Civil Procedure. Section 11 of the Code of Civil Procedure is extracted hereunder:- “11. Res judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto. Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating . Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]” 15. This Court is of the view, that if the language of Section 11 of CPC, as extracted above is taken into consideration, and particularly in the context of the Explanation given therein, the principles of res judicata would apply only when the judgment sought to be reviewed or recalled is in relation to a suit or a decree adjudicating a right on merits after contest. 16. 16. “Suit” has not been defined under the Code of Civil Procedure and this Court is of the view, that when an Application under Order 9 Rule 13 of CPC, was initially registered as Miscellaneous Case No. 108 of 2009-10, which was preferred by late Manohar Singh, it was a miscellaneous proceedings and the same could not be placed on a common pedestal, as to be a suit to be covered and brought within the ambit of Section 11 of the Code of Civil Procedure. 17. Apart from it, Section 11 itself provides, that the subsequent suit would be barred inter se amongst the same set of parties, for the same cause of action or subject. Here, in the instant case, the principle of Section 11 of CPC, would not be strictly attracted apart from the fact, that it was a miscellaneous proceeding and not a regular suit. Secondly, because of the fact that even if for the sake of argument the contention extended by the learned counsel for the petitioners is taken into consideration, then too, the initial application, which was preferred by the predecessor of the present petitioners, obviously the petitioners were not the parties to the proceedings and quite obviously, because by that time, the applicant to the Miscellaneous Application No. 108 of 2009-10, was alive when he filed the application and at that point of time, there was no cause for the heirs of the deceased Manohar Singh, to file an application under Order Rule 13 of CPC, seeking recall of the ex parte decree dated 02.04.2007, because the petitioners would have succeeded the estate of late Manohar Singh under Section 171 of the U.P.Z.A. & L.R. Act, much later on only after his death. 18. So far as the second Application under Order 9 Rule 13 of CPC is concerned, since ultimately the right over the property as emanating from the decree dated 02.04.2007, as decided in favour of the plaintiffs/petitioners herein, would have ultimately vested on the heirs of late Manohar Singh and in fact, if any prejudices were to be caused in pursuance to the judgment and decree dated 02.04.2007, in fact, it would have been on the heirs, on whom the rights have devolved over the disputed land in the light of the provisions contained under Section 171 of U.P.Z.A. & L.R. Act. 19. 19. Since as per right of succession, as provided under Section 171 of U.P.Z.A. & L.R. Act, the adverse bearing of the decree would have befallen on the heirs of late Manohar Singh, the subsequent application preferred by them under Order 9 Rule 13 of CPC would not be barred by the principles of res judicata, as contemplated under Section 11 of CPC, because they were exclusively pressing their rights, which they were having by virtue of succession from late Manohar Singh and since late Manohar Singh was deprived from contesting the proceedings under Order 9 Rule 13 of CPC on merits, because of the fact that the same was dismissed after subsequent to his death i.e. the application which was preferred by the heirs of late Manohar Singh, i.e. the present respondents herein, would be maintainable in the eyes of law, because any adverse bearing to a decree which had been rendered against late Manohar Singh cannot be fastened upon the heirs unheard merely because of the fact that the recall preferred by late Manohar Singh has been dismissed in default subsequent to his death. The law has to rationally applied depending upon the bundle of facts of each case, logically and rationally too. 20. Since the order dated 04.08.2011 itself was a non-est order in the eyes of law, the institution of an Application under Order 9 Rule 13 of CPC, by the heirs of late Manohar Singh, would be maintainable and the bar of Section 11 of CPC will not come into play. 21. Learned counsel for the petitioner, in support of his contention to attract the bar of Section 11 of CPC on sustainability of a subsequent application under Order 9 Rule 3 of CPC, has relied upon para 19 of the judgment as reported in 2008 (2) SCC 507 , Ajay Mohan and Others Vs. H.N. Rai and others. Para 19 of the said judgment has observed that it’s a trite law, that the principles of res judicata would apply at different stages of the same proceedings, which is extracted hereunder:- “15. It is a trite law that the principles of res judicata apply in different stages of the same proceedings. [See Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr. [ AIR 1960 SC 941 ] _Arjun Singh v.Mohindra Kumar & Ors. [( AIR 1964 SC 993 ]; and C.V. Rajendran & Anr. It is a trite law that the principles of res judicata apply in different stages of the same proceedings. [See Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr. [ AIR 1960 SC 941 ] _Arjun Singh v.Mohindra Kumar & Ors. [( AIR 1964 SC 993 ]; and C.V. Rajendran & Anr. v. N.M. Muhammed Kunhi [ (2002) 7 SCC 447 ] Ishwar Dutt v. Land Acquisition Collector & Anr.[ (2005)7 SCC 190 ] and Bhanu Kumar Jain v. Archana Kumar & Anr. [ (2005) 1 SCC 787 ].” 22. This Court is of the view that the judgment as aforesaid rendered by the Hon’ble Apex Court, was altogether under different factual circumstances and context where the aforesaid principles of applicability of res judicata at different stages of proceedings were being considered when there was a decision rendered by the Appellate Court was on merits, not in default against a dead person, which was then the subject matter before the Division Bench of Bombay High Court in an Appeal and which later on was put to challenge before the Hon’ble Apex Court. The said judgment was not in the context of order in default, not on merits, and against a dead person. Hence would not apply. 23. The ratio of law decided by the Hon’ble Apex Court cannot be generally applied under all the given set of circumstances invariably in each and every case. The applicability of a ratio laid down by the Hon’ble Apex Court has had to be practically made applicable under the given set of facts and circumstances of each case. 24. 23. The ratio of law decided by the Hon’ble Apex Court cannot be generally applied under all the given set of circumstances invariably in each and every case. The applicability of a ratio laid down by the Hon’ble Apex Court has had to be practically made applicable under the given set of facts and circumstances of each case. 24. Since in the said case, it was a final adjudication made on merits against the appellate Court’s judgment which was subject matter before the Hon’ble Apex Court, the principle of res judicata or its applicability was at the different stages of the proceedings, which was not being considered by the Hon’ble Apex Court, keeping in mind as to whether the same principles would be applicable at the stage when the suit itself has been decided ex parte and an application under Order 9 Rule 13 of CPC has been preferred by the judgment debtor to set aside the ex parte decree has been dismissed in default after his death, and when the same was being dismissed for want of prosecution against the deceased, the subsequent application preferred by the heirs, who had a cause of action because they would be the ultimately sufferer by the ex parte decree dated 02.04.2007, their preference of an Application under Order 9 Rule 13 of CPC by filing the same on 08.05.2016 cannot be said, that at the stage when he filed an application under Order 9 Rule 13 of CPC, it was rather a first stage at which the heirs have come forward to press their right to defend the deprivation, which they were likely to suffer or face because of the judgment and decree dated 02.04.2007 by filing an application under Order 9 Rule 13 of CPC. 25. A unified logical principle has to be rationally construed and it cannot be blindly applied. 25. A unified logical principle has to be rationally construed and it cannot be blindly applied. Secondly, because the stages herein would mean the stages where a right has had to be adjudicated on merits the cases where there is no adjudication of right on merits, the principles of res judicata would not be applicable because that is the principle which has been laid down by the provisions contained under Section 11 of CPC, wherein it has been observed that the principles of res judicata would apply only when the right is decided on merits after a contest between the same set of parties and on a substantial issue has been decided in a former suit on merits, which is not the case at hand. 26. The use of the word “decision in the former suit” contemplated under Section 11 would not be read in parlance to the dismissal of an Application under Order 9 Rule 13 of CPC, for want of prosecution on 04.08.2011, because the said order: One, since it was passed against a dead person. Second, since it was in default. Third, since it was not an adjudication on merits of a suit. In that eventuality, it cannot be treated as it was deciding an application on merits itself, to create a bar for an institution of a subsequent application by the heirs to whom the right would devolve in the light of the provisions contained under Section 171 of the U.P.Z.A & L.R. Act. 27. The defence taken by the learned counsel for the petitioner is that the applicants to Order 9 Rule 13 of CPC, as preferred on 18.05.2016, who were not the parties to the proceedings and as such their application would not be maintainable. There would be two fold arguments. i) That the applicants would be a necessary party, who would be entitled to file an application under Order 9 Rule 13 of CPC since their rights of succession over the disputed property, is protected by Section 171 of the U.P.Z.A. & L.R. Act. ii) Secondly, he contends that if the Miscellaneous Case No. 108 of 2009-10, it already stood dismissed as having abated, the said principles would not apply, if the provisions contained under Order 22 Rule 10A of CPC is taken into consideration, the same reads as under:- “10A. ii) Secondly, he contends that if the Miscellaneous Case No. 108 of 2009-10, it already stood dismissed as having abated, the said principles would not apply, if the provisions contained under Order 22 Rule 10A of CPC is taken into consideration, the same reads as under:- “10A. Duty of pleader to communicate to Court death of a party - Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall there upon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.” 28. That it is the duty of the pleader of the other side or the plaintiff itself, to communicate the death of a party. Where this responsibility is casted upon the pleader to communicate about the death of the party, the said provision does not create a distinction that this parting of an information has had to be on part of the applicant to the proceedings. Rather it’s a general principle, which will apply in the way that either of the surviving party to the proceedings will have to give an information about the death of the other party in order to enable the other party to bring on record an appropriate substitution or filing an application upon the information being imparted to the Court. Hence, this argument of the learned counsel for the petitioners is not acceptable. Though this argument has also been opposed by the respondent’s counsel on the ground that when in Miscellaneous Case No. 108 of 2009-10, the plaintiff/respondent who was contesting the application preferred by late Manohar Singh, who was the first cousin of the plaintiff /respondent and opposite party to the Application under Order 9 Rule 13 of CPC, the death would be a very apparent and inevitable factual aspect which would be deemed to be in the knowledge of the present petitioners, and if he himself has chosen not to inform the Court under Order 22 Rule 10A of CPC about death of late Manohar Singh, that he cannot reap the fruits of his own apparent and deliberate follies to deprive the heirs of the deceased Manohar Singh to get the suit adjudicated on its own merits when it relate to declaration of inter-se title. 29. Learned counsel for the petitioners has also argued that the subsequent application preferred under Order 9 Rule 13 of CPC would be barred by Article 123 of the Limitation Act. This argument has been answered by the learned counsel for the respondent that this plea of bar of limitation would not be applicable in the instant case in view of the explanation given to Article 123 of the Limitation Act, which carves out an exception that for the purposes of Article 123, prescribing a limitation for preferring of an application on the date of knowledge, would be in an exception to the application preferred by the substitutive service under Rule 20 of Order 5 of the Code of Civil Procedure, which factually happens to be in the instant case, where late Manohar Singh was said to have been served with the notices by way of publication. Article 123 of the Limitation Act, with its explanation is extracted hereunder:- “123. To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte. Explanation.—For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service.” 30. For the aforesaid reasons, I do not find any merits in the writ petition. The same is, hereby, dismissed.