RAM SANEHI Vs. MATHURA

JUDGEMENT

(1.) This review application is given by the revisionist Ram Sanehi and others on 4.9.79 against the order dated 13.8.79 passed by the Honourable Member, Mr. M. Saidullah, my predecessor dismissing the revision summarily. The relevant facts are that the present revisionist obtained an ex parte decree from the court of S.D.O. Bansdih on 3-5-75 against Mathura etc, On 6.2.76 Sri Mathura etc., applied for setting aside ex parte decree on the ground that the summon was not properly served. After enquiring into the matter S.D.O. Bansdih set aside the ex parte decree on 13.7.76 which order was challenged [revision before the Commissioner vide his order dated 4.3.77 dismissed the rievion holding that the summon was not properly served and the order of the trial court setting side the ex parte decree was proper This order was challenged in revision no 113 of 78-79 district Ballia Which was dismissed by the Honourable Member M. Saiaullah.

(2.) The learned counsel for the applicant argued that the village was notified u/s 4 (2) of Consolidation oi Holdings Act as tar back as on 31.5.75 and as such no application for setting aside ex parte decree could have been entertained by the trial court. Order passed by the trial court was without jurisdiction. According to him even restoration proceedings and proceedings for setting aside ex parte decree are to abate u/s 5(2)(a) of Consolidation of Holdings Act. I do not agree with it. Sec. 5(2)(a) of the Consolidation of Holdings Act provides that :

(3.) Proceedings of restoration of suit dismissed for default or for set aside the ex parte decree are not the proceeds contemplated by Sec. 5(2)(a) of C.H. Act for abatement. A restoration application or application for setting aside the ex parte decree is not an application for deciding the right ana till of the parties on the disputed lane. These applications are 10 be give to the court which passed the decree. Even after notification u/s 4 C.H. Act, Sec. 49 of the U.P. Consolidation of Holdings Act bars entertainment of suit or proceeding by Civil or Revenue Court with respect to the rights in such land or with respect to any other in matter for which a proceeding ought to have been taken under the Consolidation of Holdings Act. The application for restoration or sett, aside ex parte decree are not covered u/s 49 of the U.P. Consolidation of Holdings Act also and as such this application can be entertained by the court concerned (Revenue Court) in spite of notification u/s 4 of U.P. C.H. Act. The learned counsel for the applicant could not show me any pronouncement of the Honourable High Court or Board of Revenue in support of his contention that no such application can be entertained, heard and decided by the court which passed the decree. Thus I am of the opinion that the application given for setting aside the ex parte decree or for restoration will be entertained, heard and decided by the Revenue Court on merit even after the date of notification. These proceedings will not abate u/s 5(2)(a) C.H. Ac but will be decided by the court concerned There is no force in this review application which is accordingly rejected.