VIJAY SHARMA Vs. DHRUV CHAND

JUDGEMENT

(1.) Heard learned Counsel for the petitioners and learned Counsel for respondent No. 3. O.S. No. 1195 of 1981, Shyam Lal v. Misri and 5 others was instituted for partition of house. Plaintiff claimed 1/6 share in the house. Jitu father of petitioners who are 3 in number was defendant No. 6 in the suit. As the suit was for partition of a house hence all the parties were close relations. The suit was decreed on 26.11.1982 by Additional Munsif, Court No. 6, Gorakhpur, copy of the judgment is Annexure-2 to the writ petition. It is mentioned in the judgment that only defendant Nos. 3 and 5 contested the suit and suit proceeded against other defendants ex parte. Thereafter, application for preparation of final decree was filed by the plaintiff. In the said proceedings petitioners filed application on 12.4.2007 under section 151, C.P.C. praying that proceedings for preparation of final decree must be dropped as preliminary decree was illegally passed ex parte. The application was rejected on 7.2.2011 by Civil Judge (J.D.), Gorakhpur, true copy of order is Annexure-4 to the writ petition. Prior to that restoration application under Order IX, Rule 13, C.P.C. had been filed in 2005, copy of which is Annexure-CA-2 to the counter-affidavit. Against order dated 7.2.2011 Civil Revision No. 86 of 2011 was filed which was rejected by District Judge, Gorakhpur on 11.5.2011 hence this writ petition.

(2.) The Trial Court held that petitioner had got a remedy of filing restoration application under Order IX, Rule 13, C.P.C. hence he could not file application under section 151, C.P.C. The Re-visional Court in-charge District Judge held that petitioner had available with him the remedy under Order IX, Rule 13, C.P.C., Annexure-CA-2 to the counter-affidavit is copy of misc. case No. 6 of 2005 in O.S. No. 1195 of 1981 which is restoration application filed by the petitioners under Order IX, Rule 13, C.P.C. for setting aside ex parte decree dated 26.11.1982. The said application was filed before Additional Civil Judge (J.D.) Court No. 19, Gorakhpur which was dismissed on 6.10.2012 in default. It is very unfortunate that no mention about the said application and order has been made in the writ petition.

(3.) As petitioner had already filed regular restoration application under Order IX, Rule 13, C.P.C. hence the application on which orders impugned in this writ petition were passed was not maintainable.