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11. In the suit, on the side of the petitioner and contesting defendants as many as four witnesses each were examined, and, after examining the evidence on record both oral and documentary learned Trial Court decreed the partition suit in preliminary form, the relevant part of ordering portion has already been quoted above. It is redundant to mention once again, that as against the present opposite parties No.1 to 4 ( who were defendant Nos. 2, 3, 4 and 7) along with others, the suit has been decreed ex parte since ultimately they did not contest, and, it is contested decree as against defendants No.13, 14, 16 and 17, whose shares also were determined amd declared in the preliminary decree, presumably to avoid multiplicity of litigations between the contesting parties, specially when in a suit for partition everybody is plaintiff and everybody is defendant, and, any party to such partition suit can get his share declared and obtain preliminary decree subject to usual other formalities.

12. Although as against the present opposite party Nos.1 to 4 the effect of said preliminary decree was passed ex parte but the recourse to those opposite party Nos.1 to 4 would not be avaliable within the ambit of Order 9 Rule 13 of the Code of Civil Procedure, since the decree as against others, as mentioned above, was a contested decree. It appears from the record that the opposite parties in the midst of the proceeding had chosen not to contest further. In view of above since a misc. case under Order 9 Rule 13 would not be maintainable a regular first appeal has been filed being title Appeal No.1 of 2014 by opposite party Nos.1 to 4, though they had chosen neither to contest further nor to bring out their share through a preliminary decree in the suit. Therefore, let me re-look to the materials on record avaliable before this Court to arrive at the conclusion that in the decision making process by admitting the appeal the Learned Additional District Judge by condoning the delay did not commit illegality giving exposure of perverseness.

24. In the case on hand, the decree in question altogether was not an ex parte decree. It was a contested decree as against contesting defendants by determining their share in the preliminary decree which remained binding as ex parte also against the parties to that Title Suit 45 of 1988 along with the opposite parties who did not ultimately contest. In such situation, the opposite party Nos. 1 to 4 has come up with a belated first appeal under Order 41 of the Code of Civil Procedure since any such miscellaneous case under Order 9 Rule 13 of the Code would not be maintainable against the decree impugned. Be that as it may, since the criteria for consideration under Order 9 Rule 13 of the Code being altogethter different for deciding the propriety of the judgment under challenge, and since, till disposal of the application under Order 9 Rule 13 filed by the wife before Learned Trial Judge, the wife had no opportunity to prefer regular appeal challenging the ex parte decree of divorce, the action of the wife before the High Court preceded by the step under Order 9 Rule 13 of the Code was favourably considered to admit the appeal by condoning delay. It is needless to mention that in a matrimonial suit (except in case of mutual divorce) there is tug of war either to separate matrial tie on one side and to keep such tie in tact by the otherside by denying all allegations. Such dispute relates on personal relationship, where combat is between wife and husband only. So any consideration made in such nature of Matrimonial suit usually can not be equated with a civil suit involving property for partition etc. Therefore, the case of Pratima Mondal (Supra) is distinguishable, and is not applicable in the case on hand.

31. In view of above, the consideration of prayer of the opposite parties, who had no defence at all in the suit in opposition to the prayer of partition, does not have anything to justify on merit. Rather learned Court below in such peculiar nature of fact and circumstance has misplaced the concept of justice oriented approach. When there was no defence in opposition to the suit for partion, and when the petitioner by virtue of the contested decree against others has accrued an executable right enforceable through process of law, admitting an appeal by condoning the deliberate delay to their knowledge would only mean either a remand bound fate of the suit by setting the contested judgment, or dismissal of the appeal for want of no case or evidence led by the opposite parties in opposition to the prayer of partition.Learned Judge also failed to take note that the opposite party Nos.1 and 2 asserted themselves on March 2, 1989 as unnecessary parties to the partition suit and they had no share in the suit property. So, what they would say more in appeal if after its admission it would continue for some years to come. Alternatively if such an application with all above circumstances, is to answer in the affirmative extending liberal approach only for admitting Title appeal 1 of 2014 at the instance of such opposite party Nos.1 to 4 then I am afraid of whether there is any further necessity of keeping existence of the relevant provision either in the Limitation Act or in the Code.