AYODHYA SINGH Vs. BOARD OF REVENUE

JUDGEMENT

(1.) A suit under Section 229B of U. P. Zamindari Abolition and Land Reforms Act was filed by the respondent No. 4, which was dismissed by the trial court. The respondent No. 4 filed an appeal before the Additional Commissioner. By order dated 11.5.1999, the Additional Commissioner, Gorakhpur Division, Gorakhpur, allowed the appeal on the basis of compromise and decreed the suit. An application for setting aside the order on the ground that it was ex parte and that the compromise was not signed by them was filed by the petitioners. The said application is still pending. During the pendency of the application, an order dated 7.8.1999 was passed by the Additional Commissioner by which he stayed the operation of the order dated 11.5.1999 passed in the appeal. The order dated 7.8.1999 was challenged by the respondent No. 4 before the Board of Revenue. The Board of Revenue by the impugned order dated 3.5.2000 allowed the revision and set aside the order dated 7.8.1999 on the ground that during the pendency of an application to set aside the decree, there was no power to grant interim relief. It directed the disposal of the application for setting aside ex parte order passed in the appeal. The order of the Board is under challenge.

(2.) Heard learned counsel for the petitioners, Sri S.L. Yadav, learned counsel for the respondent No. 4 and the learned standing counsel.

(3.) The learned counsel for the petitioners relied upon a decision of the Punjab and Haryana High Court in J.K. Chaudhary v. Ashis Banerji, AIR 1981 P&H 51, in which during the pendency of application under Order IX Rule 13, C.P.C. the Court granted stay on certain conditions. He also relied upon a decision of the Apex Court in Kumud Lata Das v. Indu Prasad, AIR 1997 SC 34, in which during the pendency of an application for setting aside the ex parte decree the Apex Court passed an interim order staying the execution of the ex parte decree by imposing certain conditions. In support of its view that during the pendency of an application for setting aside an ex parte order, no interim order could be passed, reliance was placed by the Board upon the decision in Jagdhari and Ors. v. Vth Additional District Judge, Azamgarh and Ors. Learned counsel for the respondents has given its correct citation as 1992 (2) AWC 1152. In that case, a suit for injunction was dismissed in default and application for restoration was filed which too was dismissed in default and an application for recall of that order was still pending. During the pendency of the application for restoration, an application for temporary injunction was filed and the trial court declined to grant temporary injunction. In this situation, it was held that no application for injunction was maintainable as there was no suit pending. The case is clearly distinguishable. In that case, the suit was dismissed in default thus amounting to refusal of the main relief of injunction. An injunction though temporary was again sought during the pendency of the application for restoration. The prayer made in that application was incidental to the main relief of injunction which stood refused when the suit was dismissed in default. In the present case, the prayer in the application for interim relief was to stay the execution of the compromise decree during the pendency of an application to set aside that decree on the ground that no compromise was entered into. The prayer for stay is based on a cause of action which has arisen as a result of the compromise decree and not precedent to the decree. The decision in the case of Jagdhari and Ors. v. Vth Additional District Judge, Azamgarh and Ors. is, therefore, not applicable.