SHYAM SUNDAR AND ANOTHER Vs. KUNJ BEHARI

JUDGEMENT

(1.) THIS revision has been filed against an order of the first appellate court setting aside its earlier order by exercising powers under section 151 of the Code of Civil Procedure.

(2.) ONE Kunj Behari filed a suit against Ramlal, Shyam Sunder and Ram Jiwan. The suit was decreed exparte on 6-4-1967. On 8-4-1967 an application was moved by the defendants for setting aside the exparte decree. During the pendency of this application, Ram lal died on 9.7-1967. An application for substitution of his legal representatives was made that was allowed on 27-1-1968. Smt. Kesar, Daya Shanker, Ram Shanker and Shiv Kumar were brought on record as legal repre­sentatives of Ramlal. On 27-4-1968, the application to set aside the exparte decree was dismissed by the trial court. An appeal was filed against this order by Shyam Sunder and Ram Jiwan and also the name of Ramlal was shown as the appellant. His legal representatives were neither the appellants nor respondents. The appellate court, by its order dated 22-7-1969, allowed the appeal and also the application to set aside exparte decree, with the result that the decree passed exparte was ordered to be set aside. On 5-9-1970 the plaintiff moved an appli­cation in the appellate court with a prayer that the order dated 22-7-1969 be recalled and the trial court be directed not to proceed with the case. The appellate court has allowed this application by purporting to exercise power under section 151 C.P.C. and has directed the appeal to be listed for re-hearing. It is against this order that the present revision has been preferred.

(3.) INTERPRETING this provision the Supreme Court in Maliabir Prasad v. Jaga Ram and others, ruled .-